2022 IN REVIEW (III): OPENING LINES OF JUDGMENTS 2022: AT HOME AND ABROAD: PADDINGTON, CARNIVALS, RAISING COMMONWEALTHS AND RUINING KINGS

Our annual review continues with the best “opening lines of judgments” for 2022.  This year there are a number of strong international contenders.

Worries about misguided endeavours

The Serious Fraud Office & Anor v Litigation Capital Ltd [2022] EWHC 3053 (Comm)

In the preface to the fourth edition of Meagher Gummow & Lehane’s Equity: Doctrines & Remedies (2002), the editors suggested of one jurisdiction that the prospect of “any principled development of equitable principles seems remote”, a state of affairs they sought to attribute to the “misguided endeavours” of one judge. They observed:

“That one man could, in a few years, cause such destruction exposes the fragility of contemporary legal systems”.

1. This is now the fourth occasion in this litigation in which, as a commercial lawyer sitting in the Commercial Court, I have found myself neck-deep in the doctrines and principles of trusts law and equity, and I am concerned that my own endeavours (misguided or otherwise) may be provoking a similar reaction. However, as the Part 8 Claim which raises these issues was transferred into the Commercial Court from the Chancery Division, I have done my best to navigate unfamiliar legal pathways, and acknowledge with gratitude the assistance given by “expert guides” in the form of Ms Jones KC and Ms Reed KC, who have attempted to prevent me straying too far from equitable orthodoxy.

Carnivals and culture in Somerset

CPRE (Somerset), R (On the Application Of) v South Somerset District Council [2022] EWHC 2817

Carnivals have played an important part in the cultural life of Somerset since the seventeenth century. They involve, among other things, processions of floats, which are constructed and elaborately decorated by local carnival clubs.

Its Paddington, but not as you know him

Pixdene Ltd v Paddington and Company Ltd [2022] EWHC 2765 (IPEC)

Paddington Bear surely needs no introduction, being such a well-loved character that Her Late Majesty the Queen was filmed taking tea with him during her recent Platinum Jubilee celebrations. However, anyone opening this judgment hoping to read an interesting, perhaps illustrated, intellectual property case about the rights in Paddington Bear will be disappointed. It concerns the proper contractual interpretation of an audit clause in a royalty distribution agreement entered into on 12 March 2013 between Paddington and Company Limited (“Paddington“), which then, as now, owned the intellectual property rights in and arising out of Paddington Bear, and Pixdene Limited (“Pixdene“) which had an existing right to a share of the net merchandising income from the worldwide exploitation of the Paddington Bear merchandising rights (the “RDA“). The RDA is a short four page document consisting of three recitals and nine clauses. Paddington and Pixdene are the only parties to it.

A promise made, but is it worth anything?

 Guest & Anor v Guest [2022] UKSC 27

1. 1. “One day my son, all this will be yours”. Spoken by a farmer to his son when in his teens, and repeated for many years thereafter. Relying on that promise of inheritance from his father, the son spends the best part of his working life on the farm, working at very low wages, accommodated in a farm cottage, in the expectation that he will succeed his father as owner of the farm, to be able to continue farming there, and in due course to pass on the farm to his own children.

1. 2. Many years later, father and son fall out. It does not matter who is to blame for the falling out, but they can no longer work together or even live in close proximity. The son has no alternative but to leave, to find alternative work and rented accommodation for himself and his family elsewhere. Meanwhile the father cuts him out of his will. The facts of this case differ from the above common example only because the father David Guest has two sons, Andrew and Ross as well as a daughter Jan. Andrew was not promised the whole of the farm (“Tump Farm”) as an inheritance, but only a sufficient (but undefined) part of it to enable him to operate a viable farming business on it after the death of his parents.

3. What if anything can the law do for Andrew?

Can you remember what you’re told you’ve seen?

 Instrument Product Development Ltd v W D Engineering Solutions Ltd [2022] EWHC 1994 (Ch)

1. 1.  Instrument Product Development Ltd v W D Engineering Solutions Ltd [2022] EWHC 1994 (Ch)In a noted study published in 1981, “Role of schemata in memory for places“, the psychologists William Brewer and James Treyens reported on a simple but revealing experiment they had conducted. Each of the 87 study subjects was asked to wait briefly in an office before being led into another room. In that second room they were asked to write down a list of everything they had seen in the office. The overwhelming majority recalled seeing typical office furniture – a desk, chairs, shelves and so forth. That was unsurprising, since they had seen such items only seconds earlier. Thirty per. cent recalled seeing books and ten per. cent recalled seeing a filing cabinet. That was more unusual, because the office contained neither books nor a filing cabinet.

1. 1. The study demonstrates an aspect of the fallibility of memory. We do not store memories as images, like a photo album, to be revisited in detail at a later date. We recreate the image every time we recall it, combining the details of what we do recall with our expectations of what we should recall. The process is automatic, and done without conscious realisation that it is taking place.

1. That issue is at the heart of this case. In the Brewer and Treyens study, different witnesses had different recollections of the same room that they had seen only seconds before. In this case, two witnesses have critically different recollections of the same telephone conversation held in March 2017 to which they were the only parties.

The judge is a bit concerned about the costs

Uddin v Uddin & Ors [2022] EWFC 75

These are feral, unprincipled and unnecessarily expensive financial remedy proceedings. It took days for me to read the papers and has taken even more days to write this judgment. Because there are so many intertwined issues, it has been difficult to structure this judgment and so I use headings throughout it to help anyone reading it

When things started to go wrong in a law firm

Law By Design Ltd v Ali [2022] EWHC 426 (QB)

It all went well for a number of years. Everyone wanted the same things in their professional lives – to practise law in a small, but niche (sometimes described as “boutique“), firm of solicitors that was free from the demands that working within larger corporate bodies often brings. That all changed in May 2021, when one of the solicitors in the firm handed in her resignation (meaning that she could leave in November 2021) and explained to the managing director, and principal shareholder, of the firm that she intended to join a much larger firm, as a partner.

Houses to hotels and back again

Hotel Portfolio II UK Ltd & Anor v Ruhan & Anor [2022] EWHC 383 (Comm)

1. In the decades following the Second World War, there were many owners of grand private houses who found their financial salvation in selling them for conversion into luxury hotels. The properties which have given rise to this trial followed a reverse trajectory, the disputes arising from the very significant profit realised through transactions involving the sale of luxury hotels for their subsequent conversion to and use as private residences.

An eventful shooting party

Johnson v Spooner [2022] EWHC 735 (Ch)

1. Around the new year of 2019, while shooting pheasant in Hampshire, Charles “Brook” Johnson and his wife Sally became enthused with the idea of joining Howard Spooner in his latest venture, the George Hotel, Quay Street, Yarmouth, Isle of Wight. Mr Johnson thought it would give his wife, who did interiors and gardens, something to sink her teeth into. By the beginning of the next season relations had fallen apart.

Fraud or a witch hunt?

 ACL Netherlands BV & Ors v Lynch & Anor [2022] EWHC 1178 (Ch)

1. Fraud on a grand scale; or relentless witch-hunt? That is the question in this claim against two individuals for many billions arising out of a corporate acquisition more than a decade ago. The Claimants’ case is that they were fundamentally misled and are victims of fraud. The Defendants’ case is that the claim is “manufactured” to cover and justify a change of corporate mind, and to cast them as scapegoats for what in reality is buyer’s remorse coupled with management failings.   

The history of a jail

 Mallino Development Ltd v Essex Demolition Contractors Ltd [2022] EWHC 1418 (TCC)

1.         These proceedings concern development works at Bodmin Jail in Cornwall.  Bodmin Jail was constructed during the 18^th century and operated as a prison until 1927 after which it fell into disrepair.

THE INTERNATIONAL DIMENSION

The blunt reality about most cases

Hynes v Maguire PUST Seamus Maguire & Co Solicitors & Ors (Approved) [2022] IEHC 254

This is a judgment on a particularly tedious motion for further particulars which will not be of the slightest interest to anyone other than the parties.

Brought back from the dead

Re Estate Soulos [2022] NSWSC 1507

1. At her funeral the officiating priest opened his eulogy with a declaration that “the Iron Lady of Strathfield is no more”.
2. He may have spoken too soon. In the several proceedings between her four children she has manifested an afterlife as the central personality in the proceedings. A proud product of Sparta, her self-perception was that of a “strong person”. Her children remember her, at least in her prime, as a dominant, dominating personality. She was not, however, a sophisticated person. As she aged, she became frail, troubled by a loss of hearing and erratic. She was fiercely proud of her family. She was a prolific will-maker. She left her affairs in a mess.

Texas and beer

CANarchy Craft Brewery Collective, LLC v. Tex. Alcoholic Beverage Comm’n

“This is a case about beer. It turns on the meaning of the word “owned,” a pint-sized word with stout implications for craft brewers in Texas.”

Say what you mean or feel the Heat

LIBERTY INSURANCE UNDERWRITERS, INC., Plaintiff, v. COCRYSTAL PHARMA, INC., Defendant.

“I say what I mean, and I do what I say.”1 Vincent Hanna wasn’t talking about contracts, but he may as well have been. When parties write a contract, courts presume that they say what they mean and expect them to do what they say, but not more than they say. In this coverage dispute, the Parties used the term “Wrongful Act” and defined its meaning. The Court presumes that they meant what they said, and the plain meaning of their definition dictates that there is no coverage for any of the underlying actions that Cocrystal Pharma, Inc. has tendered to Liberty Underwriters Insurance, Inc”

1 Heat (Warner Bros. Pictures 1995).

Of kings and mayors

A report of a judgment of Gauteng High Court Judge Raylene Keightley

“Plots, true or false, are necessary things, to raise up commonwealths and ruin kings.

“As this case demonstrates, although written at a time when politics were characterised by the struggle for power between the general populace and the king, these lines might as easily be applied to describe the power struggles that have come to define our modern era of local, coalition government.

“In the case before me, we have no king. But we have the ex-executive mayor of our city, Phalatse, who claims that she was unlawfully deposed through a motion of no confidence procedure that was tainted with illegality.”