Property | Serle Court

Chambers has a well-deserved reputation in property litigation, being recognised as one of the leading sets in London by both Chambers and Partners and the Legal 500.
Serle Court’s expertise across multiple disciplines and in every major jurisdiction around the world is unrivalled at the Bar. Our property expertise is complimented by the most well-respected counsel in civil fraud, trusts, insolvency, company and charities.

Our barristers advise on both contentious and non-contentious property matters and represent a wide variety of clients, including individuals, companies, surveyors and local authorities in the Supreme Court, Court of Appeal, High Court, County Court, the First-tier Tribunal (Property Chamber), the Upper Tribunal (Lands Chamber) and the Upper Tribunal (Tax & Chancery) as well as in mediation and arbitration. We also act in property disputes in overseas jurisdictions and in the Privy Council.

What do we do?

Developments and sale of land: development agreements, joint ventures, contractual disputes, contracts for sale, options and pre-emption, overage, rights of light and other easements, modification of restrictive covenants, nuisance, injunctions, specific performance, issues with fractional investments, rights of refusal under the Landlord and Tenant Act 1987, professional negligence (surveyors and solicitors).
Land issues: restrictive covenants, easements, boundary disputes, rights of light, registration of title, mortgages and charges, conveyancing disputes, licences, compulsory purchase, valuation issues, adverse possession, proprietary estoppel, co-ownership and beneficial interests and trusts of land matters.
Commercial property: 1954 Act renewals, dilapidations, rent recovery, service charges, rent reviews, break notices, covenants, forfeiture, consents, mortgages and charges, possession actions, professional negligence, injunctions, and CVAs.
Residential property: possession actions, forfeiture, mortgages and charges, valuation issues, consents, assignments, breaches of covenant, lease extensions, collective enfranchisement and right to manage, commonhold and service charge disputes, professional negligence.
Specialist advice: canals, water and waterways, rights of light, property fraud, injunctive relief.

This breadth of expertise is reflected and supported by members’ interdisciplinary skills. Most act across multiple practice areas and sectors and seamlessly handle all aspects of clients’ cases. This reduces the risk of disruption caused by the need to find new or additional counsel during a matter.

Members of chambers contribute to the leading text 'Rights of Light: The Modern Law' (LexisNexis) which gives targeted coverage of the rights of light, combines an explanation of legal framework with practical commentary about procedure and remedies, and contains contributions from surveyors on measuring and valuing loss of light.

Other leading texts which members author or contribute towards include “Restrictive Covenants and Freehold Land: A Practitioner's Guide” (LexisNexis); “Megarry's Manual of the Law of Real Property” (Sweet & Maxwell); and “Service Charges and Management” (Sweet & Maxwell).

Recent key cases include:

Docklock Limited v C Christo & Co Limited [2024] EWCA Civ 45
Blackhorse Investments (Borough) Limited v The London Borough of Southwark [2024] UKUT 33 (LC)
Asturion Fondation v Alibrahim [2023] EWHC 3305 (Ch)
Mohammed v Daji [2023] EWHC 2761 (Ch)
Healey v Fraine [2023] EWCA Civ 549
Prescott Place Freeholders Limited v Batin & Donovan [2023] EHWC 435 (Ch)
Charles-Argyle Property Management Ltd v Boston Meadows Property Co Ltd [2023] EWHC 85 (Ch)
Dyer v Webb [2023] EWHC 1917 (KB)
Aurium Real Estate London Ultra Prime Ltd v Mishcon De Reya LLP [2022] EWHC 1253 (Ch)
Primavera Associates Ltd v Hertsmere BC [2022] EWHC 2685 (Ch)
Collins v Howell [2022] UKUT 72 (LC)
HAE Developments Ltd v The Croft Ealing Ltd [2022] UKUT 120 (LC)
Pitt & Others v Bodani [2022] EHWC
Eastern Pyramid Group Corporation SA v Spire House RTM Company Limited [2021] EWCA Civ 1658
Chuan-Hui v K Group Holdings Inc [2021] EWCA Civ 403

Our Property brochure is available to download here.

Please join our experts in conversation on LinkedIn by joining the Serle Court – Property Law Group here.

Directories
- Chambers UK 2024
  
  Serle Court is a set with strong expertise across a wide range of real estate disputes, with recent experience in areas including waterways, restrictive covenants, service charges and trespassing. Members are experienced in both chancery and commercial cases. Barristers at the set act for high net worth individuals, investment and development companies and hotel groups, among other clients. Barristers at the set have been involved in several high-profile matters this year, including continued work in Asturion Foundation v Princess Al Jawharah bint Ibrahim al Ibrahim, in which the set is acting for Princess Al Jawharah in resisting claims to a London property. One source comments that the set has "real strength in depth and extremely competent barristers."
  
  Silks:
  
  Christopher Stoner KC: "A very useful person to have in your corner."
  
  Rupert Reed KC: "Rupert is a fantastic operator at the top of his game."
  
  Juniors:
  
  Andrew Francis: "A superb advocate and the amount of work he does is phenomenal." "Andrew is strong on rights of light and restrictive covenants."
  
  Andrew Bruce: "He is a real expert in property disputes, and is able to convey difficult concepts with ease to clients." "Andrew is excellent in conference, on his feet and is proactive in moving the case forward." "Clients never fail to be impressed by Andrew. A master at absorbing an abundance of information, cutting through the chaff and rooting out the key issues quickly." "Andrew never disappoints. He is clear, concise, legally brilliant and an engaging advocate."
  
  Jonathan Upton: "Very reliable and experience in leasehold enfranchisement matters." "Jonathan Upton is intelligent, reliable and pragmatic in his approach to dealing with matters."
  
  Thomas Braithwaite: "You want Tom on your side in court. He is an effective and robust advocate who gets to the nub of the issue and teases out the real points in a highly efficient manner."
  
  Michael Walsh: "Michael is just so good. He is practical and so approachable."
  
  Jennifer Meech: "Jennifer is responsive and commercial in her outlook and advice."
  
  Legal 500 2024
  
  'Real in-depth strength in other areas of litigation including commercial and trusts disputes, now growing their property disputes team.’
  
  Silks:
  
  Christopher Stoner KC: Tier 4
  
  Rupert Reed KC: "‘He is a strategic thinker, which clients value. His preparation and legal analysis is meticulous. In court, Rupert is authoritative and commands the confidence of the judge."
  
  Juniors:
  
  Andrew Francis: Tier 2
  
  Andrew Bruce: "His advice is clear, accurate and authoritative. He has a knack of making complex legal matters easily understandable to clients."
  
  Jonathan Fowles: "He is technically fantastic, very responsive and provides robust advice."Jonathan Upton: "Jonathan is first rate on all things residential. He offers senior experience and service."
  
  Thomas Braithwaite: "Tom is an excellent advocate and thinking on his feet. Very knowledgeable on all matters land law and always willing to offer practical solutions."
  
  Michael Walsh: "Michael is a phenomenal property lawyer who understands not only the academic intricacy of property law, but how it works and can be made to work in practice for his clients."
  
  Jennifer Meech: "Jennifer is cool under pressure and has an incredible intellect."
Notable Cases
- Blackhorse Investments (Borough) Limited v The London Borough of Southwark [2024] UKUT 33 (LC):
  Jonathan Upton has successfully resisted an application to set aside the whole of a final order modifying covenants in a lease of a public house.
  
  A final order was made in February 2022 under section 84(1) of the Law of Property Act 1925 modifying covenants in the lease of The Black Horse, a public house in Southwark. The modifications were in respect of covenants prohibiting the making of alterations without consent, restricting assignment and subletting, and requiring that the premises be kept open and used as a public house. Jonathan did not act in the initial application.
  
  The application was served by hand at Southwark’s principal office but it did not come to the attention of the correct department. Southwark did not file a notice of objection and the final order was made on the papers without a hearing. The Applicant subsequently incurred significant expenditure converting the premises into 2 flats, granted a long lease of each flat and started proceedings to acquire the freehold under the 1993 Act.
  
  In November 2023, having been made aware in around June 2023 of the final order in the course of the enfranchisement claim, Southwark applied under rule 54 of the Tribunal Procedure (Upper Tribunal) (Lands Chamber) Rules 2010 to set aside the whole of the final order. The application was made on 4 grounds: non-service of the application on Southwark; that the Tribunal had been misled by the form of the application; that the order lacked coherence; and that because the order varied positive covenants it was outside the Tribunal’s jurisdiction under section 84.
  
  Rule 54 gives the Tribunal power to set aside a decision which disposes of proceedings, or part of such a decision, and to remake it if the Tribunal considers that it is in the interests of justice to do so and if one or more of the conditions in paragraph (2) of the rule is satisfied. Those conditions are as follows:
  
  (a) that a document relating to the proceedings was not sent or delivered to or was not received at an appropriate time by, a party or a party’s representative;
  
  (b) a document relating to the proceedings was not sent or delivered to the Tribunal at an appropriate time;
  
  (c) a party or a party’s representative, was not present at a hearing related to the proceedings; or
  
  (d) there has been some other procedural irregularity in the proceedings.
  
  The Deputy President held that service had been validly effected and rejected arguments that the application was misleading or that the final order was incoherent. Further, (as service was valid) the other matters did not amount to a procedural irregularity for the purposes of rule 54(2)(d).
  
  Of wider significance, the Deputy President held that a covenant which prohibits the assignment of “any part or parts (as opposed to the whole) of the demised premises”, is not a restriction as to the user of the land. As a result, the tribunal did not have jurisdiction to modify that covenant.
  
  Southwark’s ground of objection to the modification of the covenants requiring the demised premises to be used as a licensed victualling house only and to be kept open as such so long as the necessary licences could be obtained (clause 3(n)), to use its best endeavours to obtain a renewal of all licences (clause 3(o)), and for so long as the demised premises shall be licensed, to use them as a bona fide refreshment house for supplying food and liquor to the public (clause 3(p)(i)), was on the basis that each of these stipulations imposes a positive obligation on the lessee.
  
  On behalf of the Applicant, it was submitted that the substance of clause 3(n) was the restriction that the premises were to be used as a “licensed victualling house only”, which was plainly negative, and that the remainder of the restrictions were “parasitic” on the opening words of clause 3(n) and should be considered as part of a single composite prohibition on any use other than as licensed premises. The Deputy President rejected this submission and held that covenants were positive. As such, the Tribunal had no jurisdiction to modify the covenants under s.84.
  
  As a result, the final order purported to change the parties’ relationship to a greater extent than Parliament has allowed. Applying Nicholls v Kinsey [1994] QB 600, the order was “inherently invalid”; it “bore the brand of invalidity on its forehead” and was therefore “always a nullity”. Those parts of the order which the Tribunal did not have jurisdiction to make were set aside but the remainder remained as modified by the final order.
  
  You can read a copy of the judgment here.
- Asturion Fondation v Alibrahim:
  Judgment has been handed down by Mr Justice Adam Johnson after a trial over three weeks this summer in the Chancery Division of the High Court. The Foundation’s claims had been struck out in 2018, but then restored by the High Court in [2019] EWHC 274 (Ch) in a ruling upheld by the Court of Appeal in [2020] EWCA Civ 32; [2020] 1 WLR 1627; [2020] 2 All ER 965.
  
  The Asturion Foundation (the “Foundation”) claimed title to Kenstead Hall (the “Property”) on Bishop’s Avenue, transferred by the Foundation to Princess Aljawharah (the “Princess”). King Fahd had given instructions for the transfer (the “Transfer”) in 2001, but his instructions had not been actioned by the former President of the Foundation, Me Assaly, until 2011.
  
  The Court dismissed the Foundation’s claims that the Transfer was beyond the internal competence of Me Assaly as Vice-President of the Foundation’s Board under Liechtenstein law and/or was outside the purpose of the Foundation. It confirmed that that Me Assaly had the requisite sole signatory power under (i) the Articles of the Foundation (the “Articles”) and (ii) a power of attorney granted in 1988 by King Fahd as primary beneficiary of the Foundation that itself effected a delegation that was consistent with the Articles.
  
  Having heard the parties’ Liechtenstein law experts cross-examined over several days, the Judge preferred the evidence of the Princess’ expert. He found no distinction between the Me Assaly’s power of external representation and his internal competence under the Articles. They gave Me Assaly the power to adopt resolutions on his own, including as to the distribution of assets, because that is what King Fahd had wanted, and continued to want.
  
  The Court went on to find that Me Assaly had been obliged to implement the King’s 2001 instruction as a regulation of binding character issued by King Fahd under the Articles.
  
  The Judge rejected the Foundation’s argument that the 1988 Power of Attorney was governed by Swiss law. It was governed at common law by the law of the country in which it was to be used, and there was no contrary intention not least as it was concerned with the internal management of a Liechtenstein foundation. There was no requirement that it be signed by all the members of the Foundation’s Board. It was drafted in broad terms.
  
  There was nothing in Liechtenstein law to prevent the delegation of the Board’s power to make distributions, subject only to a general duty of the Board to monitor the delegate’s acts.
  
  The Court further rejected the argument that the purpose of the Foundation had been made frozen or ‘solidified’ by its first Regulation and was limited to making distributions of its assets in strict Shari’a shares. That would be inconsistent with the supremacy of the founder’s will in Liechtenstein foundation law. It was the clear intention of King Fahd to retain as much power as possible in the Foundation.
  
  The purpose of the Foundation was sufficiently flexible to include the King’s 2001 direction that the Property should be distributed to the Princess, herself one of his Shari’a heirs. That direction was itself a ‘regulation’ for the purpose of defining the purpose of the Foundation.
  
  The Court further rejected an argument that certain prima facie findings of the Liechtenstein Supreme Court as to whether a decision of the Board had been based on a ‘tenable’ legal view had any res judicata effect as to the propriety or validity of the actions of Me Assaly. As for the views of the Supreme Court in this matter, these applied expressly to directions as to the distribution of his assets after his death, and not to directions given by him while still alive.
  
  The Judge found that the Princess’ English lawyer had therefore been correct to assume that Me Assaly had been properly authorised to effect the Transfer. The oral and later written instructions given to him by Kind Fahd were consistent with earlier dealings of the Foundation with other London properties that had been gifted to various of the King’s older sons. Insofar as he had sought the consent of King Fahd’s Shari’a heirs he did so without having seen the most recent Articles of the Foundation and as a matter of cautious prudence.
  
  The Court found that there may have been some confusion as to whether Prince Mohammed had responded for the Council of Heirs with regard to the Transfer to Me Assaly. The latter had become exasperated at the lack of a promised response from the Council of Heirs and steadfast in his intention to give effect to the wishes of the late King. Evidence from Prince Mohammed’s Saudi lawyer that he had communicated the Council’s position to Me Assaly was rejected by the Court in the face of contemporaneous documents as being mistaken.
  
  The formal validity of the Transfer was ultimately a matter of English law. The Judge was not inclined to think that the Foundation was not an ‘overseas company’ for the purposes of the Overseas Companies Regulations, so that the formal validity fell to be determined under section 1 of the Law of Property (Miscellaneous Provisions) Act 1989.
  
  A legal issue arose as to whether, if the Transfer were unauthorised or outside the purpose of the Foundation, its effects would be saved by section 26 of the Land Registration Act 2002.
  
  The Judge found that, even if the Transfer had been outside the purposes of the Foundation, the effect of section 26 would be to deem the Princess to have taken free of that limitation on the Foundation’s power to dispose of the Property.
  
  He further found, however, that the protection of section 26 should apply only in respect of restraints affecting the capacity of a registered proprietor but is not engaged by constitutional limitations on the power of disposition arising solely because of an agent’s lack of authority. To that extent, he agreed with the criticisms made in Emmet & Farrand on Title of the Upper Tribunal’s decision in Ghai v. Maymask (228) Ltd [2020] UKUT (LC). If the law were otherwise, that would override the protection that section 26 is designed to afford to disponees.
  
  If, however, Me Assaly had been acting in excess of his internal competencies, so that section 26 did not operate to protect the Princess, then she could not rely on the English doctrine of ostensible authority because, even though there was a relevant holding out of Me Assaly on the Liechtenstein public register, the Transfer was a voluntary disposition for no consideration without any transactional aspect or element of reliance by the Princess, and she had notice by her English lawyer of matters calling into question the authority of Me Assaly.
  
  The Court finally dismissed further claims that the Transfer should be set aside as having been in breach of what would be a breach of fiduciary duty under English law, or under a mistake as to his duties, or that the Princess was liable to make restitution for having been unjustly enriched by the value of the Property or damages for knowing receipt. It considered that all of these claims were governed by English law, although for different reasons and based on different characterisations of the relevant claims made by the Foundation.
  
  The Judge accepted that, if he were wrong about those claims so that the Foundation had the benefit of an equity at the point of transfer, then that equity would have stood in priority under sections 28-29 of the Land Registration Act to the interest of the Princess because the transfer of the Property to her was not a transfer for value.
  
  The Foundation’s claims accordingly failed.
  
  Rupert Reed KC and Simon Atkinson, together with Simmons & Simmons (David Sandy, Tom McKenzie and Rika Akimoto) acted for the successful Defendant.
  
  Read the full judgment here.
- Mohammed v Daji:
  Jonathan Fowles, led by Mark Sefton KC of Falcon Chambers and instructed by Mishcon de Reya LLP, acted for the successful claimants in Mohammed v Daji [2023] EWHC 2761 (Ch). The successful claim was to establish that a very substantial site at Abbey Mills in East London is held by the claimants on a charitable trust associated with a particular Sunni Muslim community in the London region. The judgment of HHJ Cadwallader, sitting as a Chancery Judge, is of significance for trusts and charities lawyers. In particular, the judgment sets out and applies the law relating to trusts established by charity appeals to a complicated factual history, and further develops the principle of delegated authority to declare charitable trusts in Attorney-General v Mathieson [1907] 2 Ch 383.
  
  Please click here to read the judgment.
- Dyer v Webb:
  Amy Proferes acted for the successful respondents in Dyer v Webb [2023] EWHC 1917 (KB). Perhaps unusually for a neighbour dispute, the case (as noted by Dexter Dias KC in his judgment) "raises important questions about the nature, extent and limitations of certain of our fundamental freedoms under the law." The judgment confirms that objecting to planning applications, and discussing those applications with others, are rights protected under the Human Rights Act 1998.
  
  The Applicants and the Respondents live in Brook, a small village in Surrey. It is located in a designated Area of Natural Beauty and is therefore subject to strict planning controls. Since moving there in 1997 the Applicants had made more than 50 planning applications, some of which the Respondents had objected to.
  
  The Applicants sought an injunction to restrain the Respondents from (amongst other things) acting in concert, coercing or soliciting others to make ‘unmeritorious’ objections to the Applicants’ planning applications or other objections to the local authority such as high hedge complaints. The Applicants did not maintain that the objections were incorrect but rather that, when taken together, they formed a malicious campaign calculated to distress the Applicants. They alleged that this was a course of conduct prohibited under the Protection from Harassment Act 1997.
  
  Some may be unaware that a different test applies in applications for injunctions which will restrict freedom of expression. Rather than ‘Is there a serious issue to be tried?’ per the American Cyanamid guidelines, the burden is on the applicant to show that they are more likely than not to succeed at trial (following s12(3) of the Human Rights Act 1998). Under the 1997 Act, a course of conduct which the defendant proves was reasonable in the circumstances will not be prohibited. How then does the burden fall at the interim injunction stage, when seeking to restrain free speech on the grounds that it is harassment?
  
  The court summarised it as follows:
  1. At trial, it is for the respondents to prove on the balance of probabilities that their conduct was reasonable (if it would otherwise be harassment);
  2. For interim relief, the applicants must satisfy the court that it is likely that they will establish at trial that ‘publication will not be allowed’ (planning objections being ‘publications’ for the purposes of s12 HRA 1998);
  3. Therefore at the interim stage the applicants must satisfy the court that it is likely the respondents will not prove reasonableness at trial.
  The Applicants failed to meet this burden, as well as that set out in American Cyanamid. On both the test to restrain the Respondents’ rights of expression, assembly, and association, and to restrain other alleged conduct, the Applicants failed on each of the three limbs of the relevant test. They also failed to meet the test for a pre-action injunction at CPR 52.2(2)(b). In conclusion the court stated:
  
  "To fetter the autonomy of individuals in their exercise of free speech rights will require good cause. I judge that this court must be slow indeed to restrain protected and precious Convention rights and freedoms by injuncting genuine and meritorious objections to planning applications, even if they might upset the person applying to develop their property."
  
  The court ordered the Applicants to pay the Respondents’ costs on the indemnity basis, and recorded that the application was considered to be Totally Without Merit. It can only be hoped that this resounding judgment will restore peace to what the judge described as "a truly beautiful part of the country".
  
  “The judgment emphasises the importance of the fundamental rights of freedom of expression, assembly and association in a democratic society, and the caution the court should exercise when asked to restrict such freedoms,” commented the lawyers for the Respondents, David Haines and Rachel Carfrae of Charles Russell Speechlys LLP and Amy Proferes of Serle Court as Counsel. “Our clients are delighted that their rights have for the moment been protected by the decision of Judge Dias KC to deny the interim injunction application on all of the grounds sought. After a difficult year dealing with an unfamiliar court process, initiated by neighbours who were described by the court as sensitive and litigious, our clients hope that this sorry state of affairs will soon be concluded.”
  
  The Legal Diary published a summary of the decision 'Objections not Harassment in Rural Bliss' on 21 July 2023. Read the full summary here.
  
  To read the approved judgment of 10 July 2023, click here.
- Freeholders Limited v Batin & Donovan:
  The High Court (Richards J) has handed down its second judgment in Prescott Place Freeholders Limited v Batin & Donovan [2023] EWHC 1445 (Ch), in which Michael Walsh acted for the successful Claimants. This judgment deals with the consequential matters arising from the findings of fact at trial (see [2023] EHWC 435) (the “Trial Judgment”).
  
  The Court agreed with the Claimants’ submissions that order under section 19 of the Landlord and Tenant Act 1987 is an interest in land. This is the first time the High Court has had to decide this point and it is an important decision for tenants who are enforcing their rights of first refusal under the 1987 Act against a recalcitrant landlord.
  
  The effect of the Court’s decision was that the proprietary right created by the section 19 order (which was protected on the register by a notice) had priority over the equitable leases that were granted by D1 to D2, about which they had both lied at trial, claiming they were granted in 2014, when in fact they were granted in 2019, after the section 19 order was made.
  
  The equitable interest created by the section 19 order also gave the Claimants standing to claim injunctions restraining D2 from registering notices to protect equitable leases and further injunctions preventing him from going into actual occupation prior to C1 (the nominated purchaser) being registered as proprietor, and thereby claiming that he had an overriding interest as a person in actual occupation. The Court said at paragraph 67 of the judgment:
  
  Having granted the Equitable Leases after the Section 19 Order was made, with a purpose of devaluing the freehold interest that C1 was entitled to acquire (see [139] of the Trial Judgment) D1 and D2 between them are seeking to “invade” C1’s rights. That invasion can be effective only if D2 is able to protect the Equitable Leases either by registering a notice against the freehold title or by going into actual occupation. The Claimants have standing to request the court to restrain D2 by injunction from taking these steps.
  
  In the Trial Judgment ([2023] EHWC 435), the Court found there was no statutory restriction in the 1987 Act preventing new interests being granted out of the freehold after a section 19 order is made. D2 tried to rely on this point in resisting the injunctions but the Court dismissed this argument at paragraph 70:
  
  The fact that there is no statutory restriction on new interests being granted after the making of the Section 19 Order does not mean that D1 and D2 have free rein to create whatever interests they choose in order to frustrate the effect of the Section 19 Order. By way of analogy, there is no statutory restriction on a potential defendant to civil proceedings dissipating assets as that defendant sees fit. However, a court can act by making a freezing injunction to prevent a defendant from depriving a future judgment of practical effect by unconscionable dissipation of assets.
  
  D2 also complained that the effect of restraining him from registering his leases was to give the Claimants a windfall because they would obtain two unencumbered flats worth approximately £1.5 million for the consideration paid by D1 of £125,000 on the relevant disposal (which was a huge undervalue). The Court found that “Even if this can be referred to colloquially as a “windfall”, it is nothing more than the result for which Parliament has legislated.” (para. 74).
  
  In exercising its discretion to grant the injunctions, the Court had this to say about the Defendants’ behaviour:
  
  79. This was not simply a matter of giving untrue evidence to the court. After the Section 19 Order was made, D1 and D2 strung out compliance with that order, including by failing to co-operate with the FTT Proceedings, so as to delay unjustifiably a transfer of the Property to C1 which the court had ordered D1 to execute. D1 and D2 used the time that they bought themselves with this conduct to mount a rearguard action against the Section 19 Order by executing the Equitable Leases in order to reduce the value of the interest that C1 was entitled to acquire pursuant to that order. That conduct is unconscionable not because the court disapproves of it on a moral level, but because it represents a concerted attempt to deprive the Section 19 Order of a good part of its intended effect. It is appropriate for the court to exercise discretion to make injunctions that would prevent this behaviour from achieving its desired result
  
  81… Given the propensity that both D1 and D2 have already shown for seeking to frustrate the effect of the Section 19 Order, I regard both a continuation of the existing injunctions, and an extension of those injunctions to prevent D2 from going into actual occupation, to be a proportionate and equitable remedy.
  
  The judgment can be read here.
- Prescott Place Freeholders Limited & Others v Batin & Donovan [2023] EHWC 435:
  Mr Justice Richards' judgment in Prescott Place Freeholders Limited & Others v Batin & Donovan [2023] EHWC 435 is essential reading for those interested in tenants’ rights of first refusal under the Landlord and Tenant Act 1987. Michael Walsh acted for the successful Claimants.
  
  Two important points of principle emerge from the case. Richards J decided that;
  
  (i) the definition of ‘incumbrance’ under section 12B(5)(b) was not limited to registered incumbrances; and
  
  (ii) the making of an order under section 19 of the 1987 Act did not preclude the freeholder from making granting further interests out of the land.
  
  The procedural history is protracted and the case largely turned on the facts. The High Court agreed with the Claimants that D2’s counterclaim that he was a beneficiary under a trust and was an abuse of process and a breach of the rule in Henderson v Henderson. D2 alleged that he executed leases of two flats and a deed of trust in 2014. He had never mentioned the leases before the High Court proceedings. The Court found that D2’s evidence was untrue and neither document was executed on the dates D2 alleged.
  
  A further hearing will decide whether D2 can register the equitable leases he said he executed in 2014 but the Court found were in fact executed after the section 19 order was made.
- Healey v Fraine & Others:
  In Healey v Fraine & Others [2023] EWCA Civ 549, the Court of Appeal has decided that Parliament did not intend to change the law of adverse possession in the Land Registration Act 2002 so that occupiers of land could be in possession with the consent of the owner and also be in adverse possession at the same time for the purposes of paragraph 5 of schedule 6 of the Act. The Court decided that the meaning of adverse possession had not changed.
  
  The judgment is a wide-ranging review of the authorities relating to the legal principles of adverse possession in unregistered and registered land, which is well worth reading as a succinct statement of the law.
  
  Michael Walsh acted for the successful Respondent, leading Richard Miller of Tanfield Chambers and instructed by Janani Puvi of Fladgate.
  
  The judgment can be read here.
- Toner v Telford Homes & Ors:
  Amy Proferes acts for the First and Second Defendants in Toner v Telford Homes & Ors, a claim regarding a flat purchased off-plan. The claimant seeks rescission, damages and other remedies against 6 defendants including the developer, the property manager and the current freeholder, on the basis of misrepresentation, breach of contract, fraud, negligence and harassment. The case raises questions which will be of importance to developers selling properties off plan as to representations made in sales models and brochures, as well as how (and whether) developers can protect themselves from such claims by means of disclaimers and/or contractual terms. Judgment is currently awaited on applications by the First to Fourth Defendants seeking summary judgment and/or strike out of the claim.
- Bett & Gethin v Crown Estate:
  Thomas Braithwaite, acting for the Crown Estate Commissioners, successfully defeated an adverse claim to part of the North Norfolk coast. The case addressed the principles of accretion and avulsion, and the presumption of Crown ownership of the foreshore (Bett & Gethin v Crown Estate (FTT, REF/2017/0591)).
- Kelleher v Castlebourne Homes (Rock) Ltd [2020]:
  In Kelleher v Castlebourne Homes (Rock) Ltd [2020] (High Court, Bodmin District Registry) Andrew Bruce represented the Defendant developers in a dispute about the width of a strip of land and easement at a site in Trebetherick, Cornwall. The trial took place over a week entirely remotely in Summer 2020 and involved detailed consideration of historic conveyances, numerous plans and various aerial photographs, together with contested expert surveying evidence. HHJ Carr’s judgment paid tribute to the quality of the submissions.
- Wickers v Humbles:
  In Wickers v Humbles, Philip Jones QC and Gregor Hogan continue to act for the directors of a property development company in a dispute arising from the impact of the global financial crisis on a super-prime property development in London. The case is expected to proceed to a six-week trial in the Isle of Man in late 2021 or 2022.
- Phoenix v Phoenix [2020] EWHC 1409 (Ch):
  Jonathan Fowles acted for the successful claimant in a claim to enforce a testamentary option. The case involved arguments about the construction of a will and whether in the circumstances all executors needed to be individually served with the relevant option notice. The case is also notable for its approach to an award of statutory interest.
  
  The Deputy Master commented in his judgment that: “The skeleton arguments of both counsel were especially clear and helpful, and oral submissions focused and succinct.”
  
  Please click here to view the judgment.
- Horsford v Horsford:
  Christopher Stoner QC appeared in Horsford v Horsford, a 10-day Chancery Division trial, acting for a son who had been sued by his mother for £2.5m for her share in the family farming partnership. The son counterclaimed on the grounds of proprietary estoppel alleging he had given his life over to the farm following a lifetime of assurances it would one day be his.
- Wright v Hill & Impact Property Development:
  Lance Ashworth QC and Jamie Randall are representing the Defendants in Wright v Hill & Impact Property Development, a property development dispute concerning development sites in Rickmansworth worth up to £25 million. The Claimants are represented by James Mather.
- Habberfield v Habberfield [2019] EWCA Civ 890:
  Judgment was handed down on Thursday 23rd May 2019 after the judge ruled in favour of the Respondent, Lucy Habberfield, in an inheritance dispute. The court heard that Lucy Habberfield had been promised that the family dairy farm would be bequeathed to her by her late father. However, following a fight with her sister, Sarah, Lucy left the family home and subsequently brought a legal claim for the farm she was promised.
  
  Lord Justice Lewison, who sat with Lord Justice Moylan and Lady Justice Rose dismissed the appeal and acknowledged that Jane Habberfield (Appellant) will need to pay her daughter £1.1million to compensate for her devotion to the family holding. Richard Wilson QC acted for the Appellant (instructed by Wilsons Solicitors).
- Mackie v Scott [2018] JRC 102A:
  Kathryn Purkis advised in the Jersey case of Mackie v Scott [2018] JRC 102A in which it was confirmed for the first time under Jersey law that (alleged) misrepresentations in precontractual enquiries are not forgiven by the so-called "tout tel" clause in a Jersey conveyance.
  
  Please click here to view the judgment.
- Lamble v Buttaci [2018] UKUT 175 (LC):
  In Lamble v Buttaci [2018] UKUT 175 (LC) Andrew Francis successfully relied upon s. 84(1) LPA 1925 to modify restrictive covenants over land in Surrey Green Belt to allow a new house and garage. Where a covenant is qualified by consent requirement there is no need to seek declaration of the Court on whether consent refused unreasonably. The decision contains warnings about the effect of the conduct of the objectors' solicitor on costs recovery by his client.
  
  Please click here to view the judgment.
- Aurora Developments Ltd v Delta Holdings Ltd [2018] EWHC 1047 (Ch):
  Rupert Reed QC acted in Aurora Developments Ltd v Delta Holdings Ltd [2018] EWHC 1047 (Ch); [2018] EWHC 1836 (Ch) in obtaining summary judgment, after a three-day hearing, on complex fraud and commercial claims brought by two syndicates of European investors against the promoters of the North Kensington Gate development valued at £70m. The project can now proceed with the creation of over 200 new homes in the regeneration of Old Oak.
  
  Please click here to view the judgment
- Phillips v Francis [2015] 1 WLR 741:
  Decision by Court of Appeal as to the correct approach to the consultation requirements contained within the Landlord & Tenant Act 1985 and accompanying Regulations in respect of the recovery of service charges for qualifying works. Also important issues relating to the interpretation of a management charge clause. Christopher Stoner QC acted for the Lessees (instructed by Fursdon Knapper).
- Moore v British Waterways Board [2013] Ch 488:
  An important decision which, in upholding an aspect of the decision of Hildyard J, determined for the first time that a riparian owner cannot moor a vessel alongside his riparian land simply by virtue of riparian ownership of the river bank. Also concerned the construction and application of the British Waterways Acts. Christopher Stoner QC acted for the Defendant (instructed by Shoosmiths)
- HXRUK II (CHC) Ltd v Heaney [2010] 3 EGLR 15:
  HXRUK II (CHC) Ltd v Heaney (Re Cloth Hall Court) [2010] (High Court, Leeds) (Injunction and damages for interference with rights of light).
  
  Andrew Francis appeared for the claimant (instructed by Shoosmiths).
- Roberts v Swangrove Estates Ltd and others [2008] Ch 439:
  Successful claim by the Crown Estate to adverse possession of the bed of the River Severn, including a determination of the constitutional ability of the Crown to acquire title by adverse possession. Upheld on appeal.
  
  Frank Hinks QC and Thomas Braithwaite for the commissioners.
- Scottish & Newcastle plc v Raguz [2008] 1 W.L.R. 2494:
  Whether valid notice served pursuant to section 17 of the Landlord & Tenant (Covenants) Act 1995 and whether the original tenant’s financial support for the occupying tenant disentitled it from relying on the covenant of indemnity implied by section 24 of the Land Registration Act 1925. Christopher Stoner QC acted for the Respondents (Instructed by Eversheds LLP).
- Regan v Paul Properties Ltd and others [2006] ALL ER (D) 327:
  Regan v Paul Properties & Ors [2006] (Court of Appeal) (Injunction to restrain interference with rights of light).
  
  Andrew Francis acted for the defendants (instructed by Dawsons)

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News
03.10.24
A stellar year for Serle Court in The Legal 500 UK Bar 2025 guide

We are thrilled to announce another outstanding year of rankings and testimonials in The Legal 500 UK Bar 2025. Serle Court... Read More

News
09.09.24
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The Upper Tribunal has allowed an appeal against the FTT’s refusal to make a rule 13 costs order on... Read More
Events
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Property in Practice 005: Planning for protest: an essential toolkit for property practitioners

Location: Serle Court, 6 New Square, Lincolns Inn, London, WC2A 3QS Read More

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