Clifford Darton QC

Call: 1988
QC: 2019

Clifford Darton took silk in 2019 following his success in the “exceptional” (Lord Sumption) Supreme Court Appeal that was MWB Business Exchange Centres Ltd v Rock Advertising Ltd [2019] AC 119. Prior to this he had been recommended in both Chambers UK and the Legal 500 for many years, previous editions having described him as a “razor-sharp intellect”, “a force to be reckoned with” and “one of those rare advocates who is as strong on his feet as in drafting advice and pleadings”.

Clifford specialises in commercial/chancery work including property cases and traditional chancery/probate matters.  He is also well known for his expertise in relation to the water industry and Environmental Law including its criminal provisions.

In more recent years Clifford’s practice has expanded to include professional negligence claims against both lawyers and construction professionals often arising out of the development of land.

 

  • ADR & Mediation

    Mediations are a fact of litigation which Clifford has embraced for many years.  A determined but persuasive negotiator Clifford is also an adept drafter of settlement agreements (especially in relation to property disputes) and always adds value to the settlement meetings that he attends.

  • Arbitration

    Clifford has acted in a number of arbitrations and adjudications over the last few years, particularly in relation to property construction and property development.  Recent cases have included a 5 day CIMAR arbitration in relation to RPI increases on several local authority maintenance contracts, an expert determination on overage provisions in respect of a housing development and an LCIA arbitration on a claim to recover $3,439,375 of commission on the sale of jet engines.

    As a consequence of his strong background in contract law (see MWB Business Exchange Centres Ltd v Rock Advertising Ltd [2019] AC 119) Clifford has achieved some notable successes in resisting the enforcement of tribunal’s awards such as M Hart Construction v Ideal Response [2018] 177 Con.L.R 177 (jurisdictional challenge to £2 million plus award based on novation) and BSW Building Services v Adur D.C [2018] EWHC 3972 (breach of natural justice).

     

  • Commercial

    Clifford has considerable trial experience of most types of commercial and insolvency litigation including claims against directors for breach of duty, claims for Unjust Enrichment or for Breach of Fiduciary duties, Shareholder Disputes, Partnership Disputes, claims under the Commercial Agents Directive, Directors’ Disqualifications, actions for Breach of Confidence and Database Rights and proceedings to enforce Restraint of Trade Covenants.  He is particularly sought after in claims arising out of guarantees and indemnities having appeared in the landmark case of Johnson v. Davis (1999) Ch.117 CA (IVAs and the release of co-debtors).

    Previous cases include:

    • UKLA v Secretary of State for Education [2020] EWCA Civ 370 (£1 million plus claim for extra work on contract for educational services)
    • Dooley v Norris [2019] EWHC 1131 (£6 million minority shareholder action)
    • Hniazdzilau v Vajgel, Enriquez and Bronovets [2016] EWHC 15 (Ch) (acting for the successful Belarusian claimant in a 12 day trust action to recover ownership of a $6 million property in Minsk).
    • Intellimedia Systems Ltd v. Doyle [2015] EWHC 1200 (Ch) (acting for the successful Hong Kong claimant in a 7 day action to rectify a company’s register and recover shares).
    • Morse v. Eaglemoss Publications [2013] EWHC 1507 (Four day trial in the Chancery Division of claim for misrepresentation and breach of fiduciary duty)
    • CFB Ltd v. Atkins [2013] EWCA Civ 1101 (the payment of undisclosed commission to mortgage brokers and relief under Section 140A and 140B of the Consumer Credit Act 1974)
    • Beals Mortgage & Financial Planning LLP v. First Global Financial Services [2012] EWHC 3761 (acted for the successful claimant in a 20 day trial of a claim for damages and an injunction for breach of confidentiality and database rights)
    • Costello v. MacDonald & Otrs (2011) EWCA Civ 930 CA (claim in restitution for unjust enrichment against the directors of a building company, the case established what has since become known as the “Costello Principle”).
    • County Garages (Birmingham) Ltd v. Manton (2007) EWCA Civ 950 (six week trial in Birmingham Mercantile Court of a claim for rectification of a Shareholders Agreement and attendant damages).
    • Alan Phillips Associates Ltd v. Dowling (2007) EWCA Civ 64 CA (third party costs order against a company director).
    • EBS Pension Trustees v. Johnston & Ors (2002) Lloyds Rep PN 309 CA (correct remedy for a solicitor’s breach of a fiduciary duty).
    • Green King Plc v. Stanley (2002) BPIR 491 CA (the release of guarantors by the IVA of the principal debtor and the scope of undue influence following Royal Bank of Scotland v. Etridge).
  • Company & Partnership

    As an adjunct to his commercial practice,  Clifford is often instructed in what might be termed pure Company Law cases such as Dooley v Norris [2019] EWHC 1131 (£6 million minority shareholder action) and Intellimedia Systems Ltd v. Doyle [2015] EWHC 1200 (Ch) (acting for the successful Hong Kong claimant in a 7 day action to rectify a company’s register and recover shares).  He is currently instructed in several minority shareholder actions and a substantial LLP dispute that is listed for a 10 day trial this autumn.

    Clifford’s partnership work frequently relates to solicitors’ practices but has also included hotels, HMO businesses and farms; see Re Kingsley [2020] EWCA Civ 297 (partnership dispute over £3.6 million farm).

     

  • Environment

    Clifford acts in environmental cases in both the civil and criminal courts. He appeared in the first appeal under the Definitive Sentencing Guidelines for Environmental Offences (see R v SWS [2014] EWCA Crim 120) and is currently instructed in two of the largest prosecutions ever to be brought by the Environment Agency.

    He is an expert in the field of environmental permits and in the regulatory framework that governs the Water Industry and those provisions under the New Roads and Street Works Act 1991 that affect the laying and repair of sewers and other conduits.

  • Insolvency

    Clifford is regularly instructed in insolvency matters, often to defend claims brought by Trustees and Liquidators.  Previous cases include:

    • Sahota v Singh [2018] EWHC 1685 (fresh evidence in insolvency appeals)
    • De Leu v Hutton [2016] (ChD) (successful jurisdictional challenge to petition under EC Regulations 1346/2000).
    • Wilson & Sharp Investments v Harbourview Developments [2015] EWCA Civ 1030 (Injunction to restrain a winding up petition on a £1.2 million interim certificate under a JCT Contract).
    • Earp v Kurd [2013] BPIR 965 (ChD) (Established that a circa (£800,000 legal charge over a bankrupt’s property was not a sham after a 7 day trial in the Chancery Division brought by a trustee in bankruptcy).
  • Landlord & Tenant

    Landlord and Tenant has always been a big part of Clifford’s practice and particularly in the residential sphere.  He appeared for the successful appellant in Crewe Services & Investment Corporation v. Silk (1998) 2 EGLR 1 CA that is  still one of the seminal cases on damages for disrepair.  Clifford regularly advises two of the largest marinas on the South Coast in relation to their leases and attendant issues.

    Current or recent cases include:

    • Acting on a substantial TCC claim for damages for disrepair and breach of fire regulations (plastic cladding) in respect of an apartment block in central Manchester.
    • Acting for the lessor to a High Court claim to recover service charges in respect of a property in Cadogan Square
    • Obtaining an injunction to prevent the use of waterside properties for AirBnB – POSOL Residents Management Co v Evans (2018) ChD.
    • Advising a Marina on the recovery of substantial maintenance/repair costs arising out of inter-company trading.
  • Professional Negligence

    Having appeared in so many property and construction cases, Clifford is often instructed to act in claims against solicitors and construction professionals in relation to property purchases and property development.

    Previous cases have included claims against solicitors for failure to advise on easements, restrictive covenants or defects in title and actions against valuers/surveyors for negligent surveys or for failing to properly administer building contracts.

    He is currently acting in a TCC claim against an architect for the design and supervision of a subsidence prevention scheme and a surveyor for the administration of a JCT contract for the construction of a country house.

  • Property Damage

    Clifford has a substantial property damage practice and often appears in the TCC in claims for negligence and/or nuisance and particularly in relation to flood damage. Recent or current claims include:

    •  A substantial claim against a highway authority for damage to a sewer;
    • An even bigger claim against a piling contractor who “punctured” a reservoir on the Isle of Wight (it was bottled water for days);
    • An employer’s claim for substantial damages for breaches of a JCT contract for the construction of a “very big house in the country”;
    • A claim for professional negligence against a structural engineer whose subsidence scheme saw an equally big house slide down a hill;
    • Numerous claims for damages for surface water flooding against landowners, land drainage authorities, water companies and highway authorities.
  • Real Property

    As a junior barrister, Clifford undertook innumerable cases in relation to boundaries (Horn v. Phillips LTL 18/12/2004 Extempore CA), rights of way (Jones v. Cleanthi [2007] 1 WLR 1604 CA) and restrictive covenants (Lane v. O’Brien Homes Ltd (2003) EWHC 3030.  He also acted in actions to enforce contracts for the sale of land and in disputes arising out of the Law of Property (Misc. Provisions) Act 1989; see Hogg v Eddery [2015] EWHC 942 (Ch) (successful appeal against summary judgment on a £900,000 plus claim on a contract for the sale of land).

    In the course of this practice, Clifford built up a niche specialism in Water Law and flooding; see Raglan Housing Association v. Southampton C.C (common law definition of a watercourse) and Oldcorn v Southern Water [2017] Env. L.R 25 & [2017] Costs L.O 227 (successful defence of substantial flooding claim).

    Clifford has continued to practice in these fields since taking silk in relation to high value or complex claims.

  • Trusts, Probate & Estates

    Clifford is currently acting (with George Woodhead)  in a probate action on a £100 million estate where the issues are ones of testamentary capacity and undue influence.  He has always practised in probate and “domestic chancery” matters and in TOLATA claims to “property empires” that have been built up by extended families.

    Previous cases include:

    • Akhter v Akhtar (2019) Birmingham District Registry, (substantial TOLATA dispute between brothers as to the beneficial ownership of numerous commercial and domestic properties in Coventry)
    • De Muller v Harrison-Morgan [2018] EWHC 1904 Ch (£2.2 million pound claim by the Estate of a German Banker).
    • Bushan v Chand [2015] EWHC 1298 (Ch) (Four week trial in the Chancery Divisions of a constructive trust claim to some 40 commercial and residential properties in Birmingham).
    • Dibble v. Pfluger (2010) 1 FLR 659 CA (constructive trust and the application of the dicta in Oxley v. Hiscock).
    • MacDonald & Bannigan v. Frost (2009) EWHC 2276 ChD (Birmingham) (Proprietary estoppel and succession)
    • Walters v. Smee (2008) EWHC 2902 ChD (Testamentary disposition and undue influence).
  • Notable Cases
    • Re Kingsley [2020] EWCA Civ 297 –  orders for sale under TOLATA and allowing a party to purchase at a court-assessed price.
    • UKLA v Secretary of State for Education [2020] EWCA Civ 370 – non-oral modification clause and estoppel – raising new points on appeal
    • Kahrmann v Harrison Morgan [2019] EWCA Civ 2094constructive trusts and section 2 of the Law of Property (Misc. Provisions) Act 1989.
    • Dooley v Norris [2019] EWHC 1131 – £6 million minority shareholder action.
    • MWB Business Exchange Centres Ltd v Rock Advertising Ltd [2019] AC 119 non-oral modification clauses and the rule in Foakes v Beer.
    • BSW v Adur D.C [2018] EWHC 3972 (TCC) – successful jurisdictional challenge to adjudicator’s (£300,000) award on the grounds of breach of natural justice.
    • Hart Construction v Ideal Response 2018] EWHC 314 (TCC) – successful jurisdictional challenge to adjudicator’s £2 million award on the grounds of novation.
    • Sahota v Singh [2018] EWHC 1685fresh evidence in insolvency appeals.
    • Oldcorn v Southern Water [2017] Env. L.R 25 & [2017] Costs L.O 227successful defence of flood damage claim.
    • Hniazdzilau v Vajgel, Enriquez and Bronovets [2016] EWHC 15 (Ch) – Acting for the successful Belarusian claimant in a 12 day trust action to recover ownership of a $6 million property in Minsk.
    • Wilson & Sharp Investments v Harbourview Developments [2015] EWCA Civ 1030 – injunction to restrain a winding up petition on a £1.2 million interim certificate under a JCT Contract.
    • Intellimedia Systems Ltd v. Doyle [2015] EWHC 1200 (Ch)acting for the successful Hong Kong claimant in a 7 day action to rectify a company’s register and recover shares.
    • Hogg v Eddery [2015] EWHC 942 (Ch) – successful appeal against summary judgment on a £900,000 plus claim on a contract for the sale of land.
    • Bushan v Chand [2015] EWHC 1298 (Ch) – four week trial in the Chancery Divisions of a constructive trust claim to some 40 commercial and residential properties in Birmingham.
    • R v SWS [2014] EWCA Crim 120 – first appeal brought after the coming into force of the Definitive Sentencing Guidelines for Environmental Offences.
    • Earp v Kurd (costs) [2014] EWCA Civ 1482 – recovery of mortgagee’s costs.
    • Earp v Kurd [2013] BPIR 965 (ChD) –  established that a (circa (£800,000) legal charge over a bankrupt’s property was not a sham after a 7 day trial in the Chancery Division brought by a trustee in bankruptcy.
    • Morse v. Eaglemoss Publications [2013] EWHC 1507 – four day trial in the Chancery Division of claim for misrepresentation and breach of fiduciary duty.
    • CFB Ltd v. Atkins [2013] EWCA Civ 1101 – the payment of undisclosed commission to mortgage brokers and relief under Section 140A and 140B of the Consumer Credit Act 1974.
    • Costello v. MacDonald & Otrs (2011) EWCA Civ 930 CA – claim in restitution for unjust enrichment against the directors of a building company, the case established what has since become known as the “Costello Principle”.
    • CRJ Services Ltd v. Lanstar Ltd (2011) EWHC 972 TCC – enforcement of an adjudicator’s decision where issues were raised as to natural justice and agency.
    • Woodlands Oak Ltd v. Conwell (2011) EWCA Civ 254 CA – the extent of an employer’s duty to mitigate his losses in a building dispute and the decision in Pearce & High v Baxter.
    • Dibble v. Pfluger (2010) 1 FLR 659 CA – constructive trust and the application of the dicta in Oxley v. Hiscock.
    • MacDonald & Bannigan v. Frost (2009) EWHC 2276 ChD (Birmingham) – proprietary estoppel and succession.
    • Walters v. Smee (2008) EWHC 2902 ChD – probate action, testamentary disposition and undue influence.
    • Raglan Housing Association v. Southampton C.C & Southern Water Services Ltd (2008) Env. LR 11  CA  – common law definition of a sewer and a watercourse.
    • Alan Phillips Associates Ltd v. Dowling (2007) EWCA Civ 64 CA  – third party costs order against a company director.
    • Jones v. Cleanthi (2007) 1 WLR 1604 CA – extinguishment of rights of way by operation of statute.
    • County Garages (Birmingham) Ltd v. Manton (2007) EWCA Civ 950 – six week trial in Birmingham Mercantile Court of a claim for rectification of a Shareholders Agreement and attendant damages.
    • Rose v. Dodds (2006) 1 AER 464 CA – transfer of undertakings following the Law Society’s  intervention in a solicitor’s practise.
    • Horn v. Phillips LTL 18/12/2004 Extempore CA – boundary dispute – exclusion of extrinsic evidence in the construction of a parcel clause to a conveyance.
    • Lane v. O’Brien Homes Ltd (2003) EWHC 303 (QB) – calculation of Wrotham Park type damages for breach of a restrictive covenant.
    • Sec. State for Trade & Industry v. Selby (2003) LTL 25/6/2002 Ch D – delay in the pursuit of an appeal under the Company Directors Disqualification Act 1986.
    • EBS Pension Trustees v. Johnston & Ors (2002) Lloyds Rep PN 309 CA – correct remedy for a solicitor’s breach of a fiduciary duty.
    • Green King Plc v. Stanley (2002) BPIR 491 CA – the release of guarantors by the IVA of the principal debtor and the scope of undue influence following Royal Bank of Scotland v. Etridge.
    • Sajid v. Sussex Muslim Society (2002) IRLR 113 CA – the incidence of issue estoppel and res judicata where claims are brought in both a county court and an employment tribunal.
    • Sussex Properties Ltd v. Chichester District Council (2000) All ER (D) 887 CA – rescission in equity for mutual mistake.
    • Stimpson v. Smith (1999) Ch 340 CA – rights of contribution between guarantors.
    • Johnson v. Davis & Cole (1990) Ch 117 CA – the release of co-debtors and its affects on IVA’s under the Insolvency Act 1986.
    • Crewe Services & Investment Corporation v. Silk (1998) 2 EGLR 1 CA – assessment of damages for diminution in the value of a lessor’s reversion during the continuance of a lease
  • Recommendations

    He is good with clients and solicitors alike, providing assistance on some issues that other counsel may leave to the solicitors to deal with unaided.

    Legal 500 – 2021 – Property Litigation

     

    He is very bright and can find a way through the most technical of legal challenges.

    Legal 500 – 2021 – Environment

     

    “Very good with clients and very good on his feet.”

    Chambers and Partners – 2020 – Real Estate Litigation

     

    “A very perceptive analyst but whose real strength is in the preparation of the case.”

    Chambers and Partners – 2020 – Real Estate Litigation

     

    “A pleasure to work with.”

    Chambers and Partners – 2020 – Environment

     

    “Quick to absorb the facts and focuses on the crucial points.”

    Legal 500 – 2020

     

    “He is suave, sophisticated and someone with a razor-sharp intellect.”

    Legal 500 – 2018

     

    “has great charm before the Court, but underneath also has a rapier intellect and relentless determination to persuade the Court to recognise the merits of his client’s case.”

    Chambers UK 2017 – Real Estate

     

     

     

  • Chambers and Partners 2020
  • Legal 500, 2021
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