Ian
Clarke KC

Ian has extensive arbitration experience as an advocate, sole arbitrator and as a member of a panel of arbitrators.

A very significant proportion of these arbitrations have been seated in jurisdictions other than England and Wales and have variously been conducted under the rules of the CIArb, the ICC, the LCIA and UNCITRAL, with which Ian is familiar.

The subject matter of these arbitrations has comprised construction-related disputes under JCT contracts and commercial arbitrations, the subject matter of which has included: –

• the dissolution of partnerships, the validity of dissolution notices and status of the exiting partner (good leaver/bad leaver) and the impact on and calculation of the exiting partner’s entitlement
• company shareholder disputes and the scope, meaning and effect of a shareholder agreement and the calculation of an out-going shareholder’s profit entitlement and share value
• breach of joint venture agreements and whether and to what extent one of the joint venturers’ actions had been in good faith and/or in compliance with the obligations imposed under the JVA in connection with the development and construction of a petro-chemical development in Saudi Arabia
• the nature of the obligations assumed under a personal guarantee in connection with an infrastructure project in West Africa and whether and to what extent the US $90 million claimed was due, the arbitration requiring the determination of the impact and effect of a partial settlement agreement and a local court judgement
• a tenant’s liability for rent in Qatar by reason of the impact of the blockade and/or Covid and the extent to which the Qatari Civil Code and/or the provisions of the lease itself afforded the tenant relief
• the construction of leasehold obligations across a portfolio of poultry farms and whether and to what extent a substantial number of biomass heating systems (179) were in proper working order, properly maintained and otherwise deficient in design and/or installation
• whether and to what extent a contract for the sale of land overseas had been validly determined, the issues concerning whether the underlying contract was subject to an overarching duty of good faith and whether and to what extent COVID and/or the vendor’s conduct had occasioned or permitted the purchaser an extension of time for completion.

As an advocate, Ian brings the exacting qualities of analysis, advocacy and tactical appreciation for which he is known and commended within the litigation sphere.

When sitting as an arbitrator, Ian uses his extensive experience as a commercial dispute resolver, a part-time judge (for nearly 20 years) and as an arbitrator to resolve contested issues of fact as well as disputes between experts efficiently and fairly. He is a robust and thorough arbitrator, with a forensic eye for detail. At the outset, he aims to engage with the parties to identify appropriate and effective directions within a reasonable timetable, so as to provide an expeditious resolution of the reference, whether by a final hearing or the determination of preliminary matters. He makes his awards promptly and succinctly.

Ian is a fellow of the Chartered Institute and on the panel of arbitrators for the LCIA and the Qatar International Centre for Conciliation and Arbitration (QICCA).

The core areas of Ian’s practice (injunctive and tracing remedies, breaches of fiduciary and other duties in relation to commercial ventures, companies, partnerships and trusts, real property and equity) are frequently engaged in the context of claims arising in civil fraud and for the purposes of recovering assets and advancing proprietary claims at all stages of the litigation process. Ian is frequently instructed both in the context of investigating an alleged fraud and thereafter, whether that involves interlocutory relief or conducting lengthy and complex trials. Ian’s experience in connection with civil fraud and rectification of the register at HM Land Registry is considered under the heading “Real Property” below.

In line with his track record over many years of commendation in the directories as a junior, Ian is now recognised as an “established silk” for Chancery commercial, private client (trusts and probate) and property matters. In according that recognition, the directories have underlined the expertise and qualities which he brings to bear cases in these and other spheres.

Bahia v Sidhu [2022] EWHC 875

Ian represented the estate of the deceased partner in a series of inquiries designed to establish the partners’ respective receipts of rent from a portfolio of properties in west London. The case involved extensive disputes of fact and allegations of forgery and dishonesty.

Ahuja Investments Limited v Victorygame Limited  [2021] EWHC 2382

Following the sale of a property for c. £18m, Ian’s client was sued for fraudulent misrepresentation by which it was said he had induced the sale and was accordingly liable for damages of approximately £7m. After a three week trial and notwithstanding that the vendor was found to have made certain representations dishonestly, the Court concluded (following Ian’s cross examination of the Claimant through an interpreter) that the purchaser had not relied upon the representations and accordingly dismissed the claim with indemnity costs.

Ian has significant and extensive experience over many years in disputes between and within companies and other business entities involving cross-border issues, breaches of contract and civil fraud and asset recovery as well as the construction and enforcement of complex contractual agreements, warranties and guarantees.

In line with his track record over many years of commendation in the directories in this sphere of his practice, Ian is commended the directories and has been described as “extremely conscientious and clever, he is masterly in his ability to wriggle out of difficult situations” and for being “pretty much unflappable in court, he knows what to ask and what not to ask, and his skeleton arguments are very good”.

In re an Arbitration (2022)

Ian’s client provided two guarantees subject to Ghanaian law in support of finance provided by a mezzanine funder; issues arising included the nature and effect of a settlement and a Ghanaian court judgment in relation to one of them; the applicability and compliance with pre-conditions underpinning US$20 million of the amount claimed; the validity of an assignment and whether and to what extent the “equity kicker” contracted for and/or the interest on default could amount to a penalty.

In re an LLP (2022)

Following the retirement of a member, a deed of retirement was entered into which is said to have compromised the claim for fraud which the remaining member now wishes to advance; questions of construction concerning the scope of the settlement affected and the “sharp practice” exception arise for consideration. Ongoing.

In re a large landmark hotel development (2021)

Ian’s client, an international hotel business owning and running a landmark hotel in central London, was said to have breached a series of joint development obligations connected with the sale and purchase of the hotel, such that damages for the lost development opportunity were said to amount to just over £50 million. The matter gave rise to complex questions of construction of the document and the prospects of the alleged or any development being permitted in the context of planning and the leasehold covenants associated with part of the development.

In re a Financial Service Provider (2021)

Ian was retained by a large, FSA regulated entity to advise in connection with a portfolio of leases acquired by it under which photo-voltaic cells had been placed on consumers’ roofs, claims having been advanced for mis-selling. The case involved a pragmatic evaluation of the available evidence, sales literature and concomitant Handbook duties.

Richards v Harvey [2021] EWHC 21

The Claimant alleged that Ian’s client had entered into a joint venture arrangement with him in the Bahamas in relation to land in that jurisdiction, the terms of which he had breached. Following upon careful cross examination of the Claimant, the claim was dismissed.

Ian regularly advises and appears in relation to disputes concerning companies, partnerships (including limited liability partnerships) and joint ventures. These disputes encompass shareholders’ disputes, breaches of fiduciary duty by directors, breaches of partners’ duties of good faith and disputes in relation to the winding up of partnerships’ affairs. By their nature, these disputes tend to be confidential but recent examples include: –

Re S, Deceased (2019)

Ian is instructed by the executors of a deceased partner in a property-owning partnership between members of the same, extended family which had been dissolved but not wound up before his death. Questions arising concern the dissolution process following the deceased’s death and whether a receiver of certain aspects of the partnership business ought to be appointed, the nature of the property interests existing in certain properties in light of the family dynamic at the time of the creation of the partnership and the manner in which the dissolution ought to be effected following death. The case is thus a family/probate/partnership dispute now engaging significant allegations of fraud over properties with a combined value of approximately £10 million. The matter scheduled for a mediation imminently.

Re: A Warranty Claim (2019)

Ian’s client sold his shareholding in a market-leading business, subject to a range of warranties qualified, in the usual way, by exceptions, value limitations and a disclosure letter. Simultaneously with the first instalment of deferred payment falling due, a breaches of warranty were alleged in relation to the business’s performance and accounts leading (it was alleged) to substantial damages. The case involves a careful analysis of the warranties and their proper construction, the extent of the disclosure provided and an understanding of the manner in which certain aspects had been accounted for when measured against the relevant accountancy standards.

Absolute Living Developments Ltd (in liquidation) v DS7 Ltd [2018]

Ian was instructed in relation to a claim by the liquidator against 13 defendants, in which the liquidator sought an account and equitable compensation for breach of fiduciary duty by directors in relation to the alleged diversion of £14.5 million arising from 5 property developments. The claim also included consequential tracing and equitable compensation claims for knowing receipt and/or dishonest assistance as well as personal restitutionary remedies against the Defendants.

B v S [2018]

Instructed in the context of the dissolution of a 30+ year property partnership in which settled accounts have not been produced for a number of years, Ian is heavily engaged in advancing and defending claims for accounts and inquiries concerning the identity and extent of the partnership’s assets, the basis of occupation by related corporate entities and the appropriation of partnership income.

Andersson v Kamran [2018]

Ian’s client brought proceedings to uphold a shareholders’ agreement in relation to the voting rights in an English company, which settled shortly before trial.

Stallecker v Andersson [2017] (Murray Rosen QC, Ch D)

In a claim by shareholders in an English company, Ian’s clients successfully objected to the jurisdiction of the English court/continuation of the English proceedings based upon the shareholders’ breach (by noncompletion) of an agreement disposing of those shares and governed by German law and subject to the exclusive jurisdiction of Frankfurt courts.

L v E [2016]

A property partnership dissolution case, involving protracted disclosure arguments, claims to account and allegations of misappropriation of partnership income over many years.

Madoff Securities International Ltd (in liquidation) v Raven [2013] EWHC 3147 (Comm) Popplewell J

C’s liquidators sought to recover US$33M from the directors (on behalf of one of whom Ian acted) and others on the basis of the directors’ allegedly fraudulent breaches of fiduciary duty. The claims were all dismissed. Issues that arose included: (a) the scope of the directors’ duties and whether those duties had been dishonestly breached; (b) whether the Duomatic principle applied; (c) whether the directors enjoyed a defence of ex turpi causa (and the extent of the ability to attribute Bernie Madoff’s wrong to C); and (d) whether the directors had acted honestly and reasonably such that they ought to be excused under s.1157 of the Companies Act 2006.

Neville (as administrator of Unigreg Limited) v. Krikorian CA [2007] B.C.L.C. 1

Appeal from a summary judgment determination against a director for loans taken by managing director. Whether one director could be jointly and severally liable for indebtedness of another director – Companies Act 1985, ss 330, 341.

Ian has appeared in for many cases arising out of the liquidations of companies, receiverships, administration and bankruptcies. Indeed, many of his cases listed under “company and partnership” have arisen in the context of an insolvency and could easily (but are not) replicated here. As a direct result of his arguments in pursuing directors’ liability under the phoenix-company provisions of the Insolvency Act 1986, the Insolvency Rules were amended.

In re a Local Authority and a Tenant’s CVA (2019)

The latest in a number of instructions received by Ian from various solicitors under which he has been asked to advise a landlord upon the extent and effect of a tenant company’s CVA and its variation of rent and purported variation of the landlord’s right to forfeit in circumstances where the landlord neither voted for the CVA nor sought to challenge it pursuant to the provisions of the Insolvency Act 1986.

Tradestar v Goldfarb [2018], unreported. (Fancourt J)
Ian’s client sought to strike out the remaining parts of the claim on the basis that liability under section 214 of the Insolvency Act 1986 (wrongful trading) required loss by the single, proving creditor in the liquidation calculated on tortious principles and thus there was no potential liability for his client to be ordered to contribute towards a penalty only imposed because of the matters alleged. The Court declined to determine the point and the matter will now proceed to trial.

Richard Hunt Investments Ltd v Hunt [2017] EWHC 528 (Ch)
This claim involved the careful consideration of the mechanics and conduct of the liquidator leading to a pre-pack administration in which it was said by the director that the matters said to comprises breaches of duty or authorised, sanctioned or condoned by the liquidator. The majority of the claims brought were dismissed.

In re F & Sons Limited [2016]

This was a claim by liquidator against directors of a company which had entered into an EBT Scheme each year for a number of years in which it was said that the contributions to the scheme (occurring at a point in time in which the company was insolvent, given its alleged liabilities to HMRC) represented breaches of fiduciary duty by those directors, for which compensation ought to be made following its liquidation.

Elbestate Limited (In liquidation) v Neil Aiston [2016]

A claim by the liquidator (for whom Ian acted) against the company’s former solicitor for misappropriation of company monies.

In re Powers Legacy Limited (in liquidation) [2015]

A claim in which Ian, acting for the liquidator sought relief under sections 212, 238 and 239 of the Insolvency Act in relation to directors’ breaches of duty, transactions is an undervalue and preferences.

OR v Bowers [2015]

An application by the OR are to suspend the running of time for the purposes of the discharge of 2 bankrupts because of non-co-operation.

Madoff Securities International Ltd (in liquidation) v Raven [2013] EWHC 3147 (Comm) Popplewell J

C’s liquidators sought to recover US$33M from the directors (on behalf of one of whom Ian acted)

and others on the basis of the directors’ allegedly fraudulent breaches of fiduciary duty. The claims

were all dismissed. Issues that arose included: (a) the scope of the directors’ duties; (b) whether the Duomatic principle applied; (c) whether the directors enjoyed a defence of ex turpi causa (and the extent of the ability to attribute Bernie Madoff’s wrong to C); and (d) whether the directors had acted honestly and reasonably such that they ought to be excused under S.1157 of the Companies Act 2006.

Capita Alternative Fund Services (Guernsey Ltd) (formerly Royal & Sun Alliance Trust (Channel Islands Ltd) v Driver Jonas (A firm) (Eder J.) [2011] EWHC 2336 (Comm)

Reported for the decision in relation to the subsequent claim for damages for professional

negligence in connection with the valuation of a shopping centre, Ian secured the appointment of provisional liquidators at the outset of the litigation in order to preserve the commercial viability of the centre.

Palmer v Ingram [2009] EWCA Civ 947

Appeal against permission for the receiver to commence proceedings in the name of a dissolved Irish company, the assets of which had vested bona vacantia in the Irish Finance Minister. Issues included extent of state immunity in relation to property in which the state had an interest.

Churchill v First Independent Factors Limited CA [2007] B.C.C. 45; [2007] Bus.L.R 676

Ian represented the respondent in opposition to a second appeal concerning the interpretation of IR 4.228. The Court of Appeal gave leave for the appeal because the case, the arguments and the subject matter (phoenix companies) were of public importance, this being one of many such claims brought by Ian’s clients which had attracted “trade press” discussion. The appeal was dismissed and has required those involved in MBOs to consider their methodology and approach. The decision led to a prospective amendment to the Insolvency Rules.

Neville (as administrator of Unigreg Limited) v. Krikorian CA [2007] B.C.L.C. 1

Appeal from a summary judgment determination against a director for loans taken by managing director. Whether one director could be jointly and severally liable for indebtedness of another director – Companies Act 1985, ss 330, 341.

Re Ci4net.com Inc [2005] B.C.C. 277

A relatively early decision on Article 3 of Council Regulation 1346 and the Centre of Main Interests of two foreign companies (USA and Jersey registered) in administration, for the purposes of winding up.

Re a company (No 196 of 2003) [2003] All E.R. (D) 450

Application by Secretary of State for appointment of provisional liquidator – Application for order restraining advertisement of winding up petition – Consideration of the various factors governing the appointment of a provisional liquidator.

Ian is an accredited mediator and is instructed regularly as such and, as an advocate, to represent his clients in mediations.

As an advocate, Ian recognises and embraces the opportunity that mediation in ADR presents to address both the immediate dispute and, where possible, the broader and commercial narrative and recognises that mediation, in particular, represents an opportunity to achieve an outcome which may be more closely attuned to his client’s objectives and can address matters beyond those simply engaged in the litigation itself. It is particularly in this forum that his practical and commercial approach to his client’s interests can assist in fashioning a resolution to the dispute. Many of Ian’s cases resolve themselves by settlement through formal ADR and mediation processes or simply by negotiations between the parties’ respective legal teams.

As a mediator, Ian has many years’ experience, having been instructed on numerous occasions to mediate commercial disputes, company, partnership and insolvency matters as well as disputes and litigation concerning boundaries and the use and ownership of land. His approach as a mediator is business-like, pragmatic and “hands-on”, underpinned by careful and diligent reading of the case documents and an appreciation of the broader commercial interests at play.

Accordingly, Ian has a wealth of experience which can be brought to bear in this sphere of dispute resolution.

During the immediate years following the 2008 property collapse, Ian was heavily involved on behalf of institutional lenders in pursuing claims arising from solicitors and surveyors’ negligence in connection with secured lending (building upon his experience in similar circumstances in the mid-1990s). That experience and Ian’s areas of practice in relation to commercial, company and partnership matters as well as real property are reflected strongly in his professional negligence practice, which focuses particularly upon the advice and conduct of barristers, solicitors (particularly in the conveyancing sphere), surveyors and accountants. Given that many of these matters settle following mediation or ad hoc arbitration rather than proceeding to trial, it is not possible to give client details in most instances. Ian is a member of the Professional Negligence Bar Association.

Ian’s has been commended in this aspect of his practice as one who “demonstrates seasoned judgment” (Legal 500, 2016).

In re DEF Solicitors LLP [2019]

Ian’s client was a landlord to a high-street restaurant chain which entered into a CVA. Consideration was given to whether to challenge the proposal as prejudicial. In the end, the landlord was advised simply to rely upon a side letter by the supervisors. Subsequently, the landlord forfeited the tenancy only to be met by a claim by the authorised guarantor that no such right existed and therefore the obligation under the AGA to take a new lease had not arisen. Ian was instructed to advise upon the liability of the solicitors in the context of that advice and the conduct of the matter and also in relation to steps to be taken as against the guarantor.

In re AB (a partnership) [2018]

Ian has advised in connection with the advice tendered to company directors by their accountant in connection with the retirement planning of one of those directors in light of the company’s perspective and contingent liabilities which ultimately led to its liquidation and the subsequent challenge by the liquidator to the scheme devised.

In re ABC Solicitors LLP [2018]

Ian was advising a chargee who security was lost upon rectification of the register as a result of a property fraud, in which the solicitors conveyancing executive was allegedly complicit.

In re DE LLP [2018]

Ian’s clients claim concerned his former accountants’ failure to agree the extent of liability during a concessionary period afforded by HMRC for settlement of liabilities relating to EFRBS schemes.

In re XY LLP [2017]

This matter comprised a claim against solicitors in relation to the advice and drafting of a share sale agreement, focusing in particular on the absence of effective security afforded to the vendor or following transfer in the event of non-payment of the staged payments.

H v NM Solicitors [2015]

Ian – acting for the claimant – sought damages for the defendant solicitor’s negligence in relation to conduct an advice upon the acquisition of a site for the use in construction of fishing lakes, the dispute focusing on the extent to which the development had planning permission and the nature and extent of the advice given by the solicitor to the claimant purchaser.

In re K Solicitors [2015]

Ian acted for the defendant solicitors in the claim for breach of retainer by a lender, alleging nondisclosure of material facts that might otherwise of alerted it to a back-to-back sale.

F v Z Solicitors LLP [2015]

Ian represented lenders (acting as the borrower’s attorneys) against solicitors in relation to that failure to ensure the development against which the lenders have lent enjoyed any or any sufficient planning permission, in the absence of which their security was illusory.

Hubbard v Bank of Scotland [2014] PNLR 23 (CA)

The appeal was successfully defeated on the basis that the surveyor owed no duty to recommend further or independent advice where (a) the limited extent of the report being provided was clear on its face, and the availability of more detailed reports was clearly described, and (b) where the opinion that there was no sign of current movement was a legitimate opinion for the surveyor to hold in the circumstances.

Hubbard v Bank of Scotland (t/a Colleys) [2013] EWHC 1021 (QB)

H sought substantial six-figure damages arising from a negligent building survey on purchase. Ian was instructed for the valuer. The claim was dismissed: liability was not made out and H’s experts were undermined in cross-examination both as to their evidence and their independence.

Ian’s practice encompasses all aspects of real property law. He thus advises frequently on disputed titles, beneficial ownership, covenants, easements, boundaries and mortgages (as well as mortgage receivership) and subrogation. In addition, Ian has a particular specialism in matters pertaining to registered title, particularly rectification and indemnity claims. Ian is a member of the Property Bar Association.

In line with his track record over many years of commendation in the directories in this sphere of his practice, Ian is commended in Chambers 2019 for Real Estate litigation and in particular for “his exceptional client service”, his “stellar intellectual capabilities” and for being “bright, good at reading the Court and [having] a good sense of where tactical decisions need to be made to make a difference in the case. He instils confidence in clients”. The Legal 500 2019 commends Ian on the basis that “his advocacy skills are excellent and he has a very persuasive manner”. In the past, he has been commended for being “very proactive and responsive, and provide sensible commercial advice” (Legal 500, 2016).

Ian was one of the 4 original appointees to the post of Deputy Adjudicator to HM Land Registry under the Land Registration Act 2002 in July 2004 and has sat in that jurisdiction and its successor jurisdiction since his initial appointment, hearing cases involving allegations of fraud, challenged priority, beneficial ownership and boundary disputes.

In addition, Ian has – since 2000 – been the co-editor of Cousins on the Law of Mortgages (now in its 4^th edition (2017) and is also published two books on the Land Registration Act 2002 (the initial commentary provided to subscribers of Ruoff & Roper on Registered Conveyancing and Wolstenholme & Cherry’s, Annotated Land Registration Act 2002.

In re a Local Authority and a Tenant’s CVA (2019)

The latest in a number of instructions received by Ian from various solicitors under which he has been asked to advise a landlord upon the extent and effect of a tenant company’s CVA and its variation of rent and purported variation of the landlord’s right to forfeit in circumstances where the landlord neither voted for the CVA nor sought to challenge it pursuant to the provisions of the Insolvency Act 1986.

In re a Large National Landholder (2019)

Ian’s client holds substantial tracts of unregistered land, nationally and is in the process of negotiating a fast-track registration procedure with HM Land Registry. HM Land Registry’s proposals involve the limited registration of appurtenant rights, such that Ian’s client has sought and is seeking his advice on the potential title/commercial consequences that such a proposal may have on the enforcement of its rights and their transfer ability in due course upon sale. The number of titles affected extends into the thousands.

Fortdene V MFA Properties (2019) (Unreported) (Ch D, HHJ Mark Raeside QC)

A claim by landlord for the payment of service charge from Ian’s client, the case concerned the circumstances in which a landlord acting “reasonably” under a service charge provision in a commercial lease was required to act reasonably in an objective sense or simply to act in accordance with Wednesbury reasonableness (i.e. not to act in a way that no reasonable landlord could act). Ian’s argument succeeded at first instance; on appeal, the matter was remitted for a re-hearing.

In re Title Insurers [2018]

Ian has been instructed to advise the providers of title insurance as to their respective liabilities following rectification of the register when measured against HM Land Registry’s obligation to indemnify and to consider whether and to what extent rights of subrogation have arisen.

In re a National Utility Provider [2018]

Ian has been instructed to advise in connection with the evidence and presentation multiple adverse possession claims brought by a nationwide utility provider in connection with items of equipment which are pending before HM Land Registry

Re A Close, Kent [2018]

Following a dispute as to the valuation mechanism and calculation under an option agreement, Ian was instructed to advise and make the appropriate (and successful) submissions to the arbitrator.

In re BY Limited [2017]

Having acquired a substantial commercial site in South London for redevelopment, Ian’s clients were faced with a claim for an easement from neighbouring property over the land which substantially threatened the proposed re-development. Ian was instructed to advise in connection with the strength of the claim, the extent to which the claimed route could be re—aligned and the tactics involved in the progression of the proposed-redevelopment, bearing in mind the risk of injunctive relief.

In re a petrol station [2017]

Ian’s clients were faced with a prescriptive claim over the forecourt of their petrol station which was sought in aid of a substantial, adjacent development for a supermarket.

In re the Hawthorn Estate [2016]

Ian advised a substantial rural estate in connection with applications under section 84 of the Law of Property Act 1925 for the variation and discharge of restrictive covenants concerning the use of land developed for residential purposes.

 ITL Mortgages v Burleigh [2015] Rose J (Ch D)

Instructed by ITL in circumstances where its conveyancing solicitors had failed to secure a charge over both constituent titles to the property in question, Ian obtained summary judgment for declaratory relief as to the disputed terms of the facility/mortgage and an order for rectification in circumstances where the borrowers were seeking to impugn the contractual interest rate by reference to the LIBOR manipulation of others.

In re the AB Housing Association [2014]

Ian’s clients, a registered housing association, sought to demolish/rebuild various dwellings on a Victorian housing estate in West London in circumstances where – initially, at least – immediate residents were opposed to the scheme. Ian’s advice in the context of the covenants imposed, the procedure, design and politics of the situation was sought, culminating in an unopposed application for variation.

Ian advises and frequently appears in matters relating to the existence, interpretation, management and dissolution of trusts, the grant and revocation of probate and letters of administration, the construction and rectification of wills, the devolution of estates and the duties owed/breached by personal representatives and trustees as well as in matters concerning their removal and appointment. His practice also embraces Court of Protection matters as the cases identified below indicate. This aspect of his practice involves Ian’s instruction and appearance in foreign jurisdictions – principally the Caribbean and Gibraltar. Ian is a member of STEP.

The Legal 500 2019 commends Ian in this aspect of his practice on the basis that “his advocacy skills are excellent and he has a very persuasive manner. He is very experienced and very commercial”. In previous years he has been commended in this field as being a practitioner that “cuts to the core of complex subject matter”.

Re T Accounts (2019)

Ian’s client is an extremely high net worth individual who was trustee of a number of family trusts from the 1970s and against whom an action for an account was brought and ordered by the Chief Master. Having provided the account, the claimant parties are now challenging various transactions within it and Ian has been instructed to advise and also to advise on the discrete issue relating to the pursuit and obtaining of documents and information from an appointor/protector of the trust. Prospective issues include whether and to what extent challenges of the nature advanced by the claimant parties ought to be permitted given the passage of time and the nature, scope and effect of an exoneration clause.

T v H (2019)

The T Accounts have given rise to satellite litigation against a protector and potential trustee de son tort, in which Ian’s client is seeking the production of documents, the disclosure of information and her attendance for cross examination in relation to the affairs of the above trusts. The claim builds upon and aims to develop the law concerning the obligations of fiduciaries in connection with their successors.

The AF Case (2019)

Ian’s client seeks to establish a claim to assets of his late father entrusted to a (now deceased) relative by marriage in high-ranking Middle Eastern family. The claim is at the investigatory stage, with the gathering of evidence (here, in the Lebanon and in the United States) and applications for the requisite grants in relation to the late father’s estate. The case gives rise to potential jurisdiction challenges and the nature of the obligation assumed by the relative (English trust or sharia law obligation) as well as complex evidential issues spanning a considerable number of years.

Re H (2019)

Ian was initially instructed in this long-running matter by P’s deputy in relation to the negotiation, drafting and approval of a settlement agreement in relation to arbitration proceedings before the Beth Din, proceedings in the High Court in London and proceedings in Israel. All of these proceedings are currently stayed.

The settlement aims to conclude a protracted family dispute concerning substantial property assets in London and Tel Aviv, held on trust and in various nominee companies in which there have been various dealings and securities granted over a number of years, all without documentation. P has now died and Ian is instructed on behalf of his executors.

The claim provides a challenging interface between non-contentious drafting, tax and inheritance considerations, interests in land and company law in order to achieve a settlement which is both beneficial, robust from challenge and (prior to P’s death) was capable of approval by the Court of Protection.

In re K (patient) [2018]

Following a protracted arbitration before the Beth Din and proceedings pending in this jurisdiction in Israel, Ian has been instructed to advise draft and procure Court of Protection approval for a complex multijurisdictional settlement concerning a property-based dispute.

Re H Trusts [2018]

Ian has been instructed in connection with an accounting trustee’s response to queries to an account rendered pursuant to an order of the Court in relation to a family trust.

In Re M [2017]

Ian was asked to advise Indian Counsel on the meaning and effect under English law of a disinheritance clause contained within the deceased’s will, then the subject matter of litigation in India.

Vindis v Collins [2016] EWHC 1109 (Ch) Asplin J

Originally a claim under the Inheritance (Provision for Family & Dependents) Act 1975 by the widow, by trial this claim had evolved raising questions of estoppel potentially binding upon the estate as to the extent of the Deceased’s interest in certain companies and properties, whether the detrimental reliance alleged was sufficient to found and estoppel and ancillary 1975 Act claims by children and other dependents. Subsequently settled at mediation.

Meerza v Al Baho [2012] – [2016]

The estate aspect of this litigation involved a daughter’s entitlement to represent the estate of her late, Kuwaiti domiciled father, in the context of litigation in England concerning the sale of a property in Bayswater owned by 2 Gibraltar companies. It gave rise to separate proceedings in this jurisdiction to set aside one of two almost simultaneous grants of letters of administration issued from different registries, questions of the ability to amend extant pleadings to include post-issue grants of letters of administration and, in Gibraltar, applications for the revocation of grants of letters of representation.

In re: A (A patient) [2016] 4 WLR 141

Ian acted for A’s deputy in litigation which culminated into complex arguments on costs turning onwhether the applicant should bear them or whether they should be charged to the patient’s estate (the starting point in the CoP). The case may be unique in its consideration of whether and to what extent that starting point should be departed from and in particular (a) the timing and effect of a costs’ warning in the COP (b) the potency of a Calderbank letter in awarding costs. In a reserved judgment, the President awarded the deputy her costs from prior to the date of the costs’ warning and in full, in light of the Calderbank letter.

Harris v Earwicker (2015), unreported: Chief Master Marsh

The question arose whether the value of a bequest of an annuity was to be fixed, where the

annuitant elected to have the capital, by reference to Government Tables or the price in the market. The case involved a review of nearly a century of authorities: as a result, it was held (contrary to the leading textbooks) that the value was to be determined by the cost in the market.

Sea Freight Line Ltd v McKenzie [2014], Grand Court of the Cayman Islands

A claim arising from the liquidation of a freight forwarding company, in which the claimant brought proceedings against a director for making payments in breach of fiduciary duty and dishonestly assisting transfers of funds in breach of that duty.

Garnham Executors of Iris Bristow, Deceased [2013] EWHC 4292 (Ch) Proudman J

Mr Garnham sought to set aside a settlement and to claim damages of £1.38 million arising from the fraud and conspiracy which was said to have preceded and influenced him into settling earlier litigation. The claim was successfully defeated after a 4 day summary judgment hearing.

Re: Ikin, deceased; sub nom Court v Despallieres (Arnold J.) [2010] 2 All E.R. 451

Successful revocation of a grant of letters of administration on the basis of the deceased’s

subsequent civil partnership and the will’s failure to comply with section 18B(3) of the Wills Act 1837 (wills made in contemplation of a civil partnership). The only decision on this provision and the similar provision on section 18 (wills made in contemplation of marriage).

Re: Ikin, deceased; sub nom Court v Despallieres (2009) (Roth J.) 153 (38) S.J.L.B. 30

Application to vary a freezing and proprietary injunction to enable D to use estate monies to fund his defence to an on-going claim for revocation of probate on the basis that the will admitted was a forgery.

Jones v Firkin Flood Ch.D (Briggs J.) [2008] EWHC 2417 (Ch)

Trial of trustees’ claim for court approval of a particular course of action and of the counterclaim for their removal and assorted declaratory relief. The Court directed independent counsel to represent the interests of the minors and unborn beneficiaries at trial (for whom Ian was instructed)

Wren v Wren [2007] W.T.L.R. 531

Intestacy – application for a grant of administration and revocation of probate. A copy of the will was discovered in unusual circumstances and then lost; only a copy of the copy remained. Was the copy will genuine and could the Claimant rebut the presumption of revocation that arose on the missing will? Court pronounced for the copy of copy will.

Wester v Borland Ch.D (Norris J.) [2007] EWHC 2484

A trustee seeking to exercise a right of lien over trust property as an indemnity against future liability had the burden of demonstrating that there were substantial grounds for exercising the right and that he had taken all reasonable steps to ascertain his liability.

Dadourian Group International Inc v Azuri Ltd [2006] W.T.L.R. 239

Freezing order made against a third party company, the shares of which were held on trust. Whether that trust was a sham and whether the Court should have regard to the substantive control of assets when making a freezing order. Whether a previous freezing order was ‘continued’ or ‘not discharged’.

• Idemia France SAS v Decatur Europe Limited [2019] EWHC 946 (Comm) (Richard Salter QC, Comm Ct)
  Idemia France SAS v Decatur Europe Limited [2019] EWHC 946 (Comm) (Richard Salter QC, Comm Ct)
  The claimant sought to establish jurisdiction over Ian’s clients by establishing that the guarantee documents containing English jurisdiction clauses had been separately executed so as to have immediate binding effect. In this regard, the application was dismissed; the cross-application for a stay of the claim against the Third Defendant on the grounds of forum non conveniens was successful. Permission to appeal was granted but the matter settled prior to judgment being handed down.
• Fortdene v MFA Properties (2019) (Unreported) (Ch D, HHJ Mark Raeside QC)
  A claim by landlord for the payment of service charge from Ian’s client, the case concerned the circumstances in which a landlord acting “reasonably” under a service charge provision in a commercial lease was required to act reasonably in an objective sense or simply to act in accordance with Wednesbury reasonableness (i.e. not to act in a way that no reasonable landlord could act). Ian’s argument succeeded at first instance; on appeal, the matter was remitted for a re-hearing.
• Idemia France SAS v Decatur Europe Limited [2018] (Knowles J, Comm Ct)
  Ian represents an English company, a Bangladesh company and a Bangladesh domiciliary in relation to a claim by a French company said to be based upon English law agreements executed as part of a commercial arrangement governed by Swiss law. An application for an anti-suit injunction was successfully resisted before Knowles J; challenges to the substantive jurisdiction are pending.
• Brent LBC v Evans [2018] EWHC 3129 (Ch) (Zacaroli J).
  Having heard further argument from Ian on the half of all defendants and on a point undecided directly in English law, the Court determined the scope of the remedy in knowing receipt and entered judgment against Ian’s client for less than £40,000 (on a claim for £2.8 million). The Court also resolved an apparent conflict on the authorities on costs in relation to who was the ‘successful party’. Ian’s client recovered some of his costs as against the Claimant.
• Tradestar v Goldfarb, unreported. (Fancourt J)
  Ian’s client sought to strike out the remaining parts of the claim on the basis that liability under section 214 of the Insolvency Act 1986 (wrongful trading) required loss by the single, proving creditor in the liquidation calculated on tortious principles and thus there was no potential liability for his client to be ordered to contribute towards a penalty only imposed because of the matters alleged. The Court declined to determine the point and the matter will now proceed to trial.
• Brent LBC v Evans [2018] EWHC 2214 (Ch) (Zacaroli J). Ian’s client was the deputy headteacher of local education authority school who had received payment substantially in excess of the amounts stated within the relevant statutory documents. Damages were sought of £2.8million on the basis of a dishonest, tortious conspiracy between the Defendants and/or by reason of breaches of fiduciary duty, thereby also founding a claim for knowing receipt. At the end of a 7 week trial, the claims for dishonesty, conspiracy and breach of fiduciary duty (as against Ian’s client) were dismissed, leaving a liability for knowing receipt.
• Harb v Prince Abdul Aziz [2018] EWHC 508 (Ch) (Arnold J)
  The retrial of the matter last tried by Peter Smith J. Ian’s client successfully established an agreement and defeated allegations of illegality in relation to the manner of its discharge.
• Prince Fahd Bin Abdul Aziz v Harb [2017] EWCA Civ 2215; [2018] 1 W.L.R. 2709
  The appeal from the decision below of Arnold J, in which the Defendant’s appeal was dismissed.
• Richard Hunt Investments Ltd v Hunt [2017] EWHC 528 (Ch)
  A successful defence by Ian of the majority of the claims brought against a director by the liquidator of one of his companies, alleging liability for breach of fiduciary duty and constructive trusteeship from conduct in which both were complicit following a pre-pack administration.
• Harb v Aziz [2017]EWHC 258 (Arnold J).
  Following the Court of Appeal’s direction for a re-trial, the Defendant sought to strike out/stay the claim on the basis that the Claimant had not paid the £250,000 ordered on account of his costs by the Court of Appeal. Alternatively, he argued that the Claimant was in contempt and should not be heard to seek directions for the re-trial until the money was paid. Ian’s arguments that such an order would infringe the Claimant’s Article 6(1) rights prevailed since she could not pay the money; whilst permission to appeal has been given in relation to whether relief from implied sanctions is necessary and the Article 6 point, the matter has been re-listed for a re-trial.
• Harb v Aziz [2016] EWCA Civ 556 (CA)
  Having lost before Peter Smith J, the Defendant appealed on the basis that the trial judge should have dismissed the claim; alternatively, that he was biased against the Defendant’s counsel and their chambers. The appeal and the underlying allegations attracted significant publicity. Ian appeared for the Claimant: the Court of Appeal declined to dismiss the case, instead ordering a re-trial. The allegations of bias were dismissed.
• In re: A (A patient) [2016] 4 WLR 141
  Ian acted for A’s deputy in litigation which culminated into complex arguments on costs turning on whether the applicant should bear them or whether they should be charged to the patient’s estate (the starting point in the CoP). The case may be unique in its consideration of whether and to what extent that starting point should be departed from and in particular (a) the timing and effect of a costs’ warning in the COP (b) the potency of a Calderbank letter in awarding costs. In a reserved judgment, the President awarded the deputy her costs from prior to the date of the costs’ warning and in full, in light of the Calderbank letter.
• Harb v Aziz [2015] EWHC 2195 (Ch) Peter Smith J (Ch D)
  The Defendant was refusing to attend court; as a result, the Claimant (for whom Ian acted) obtained an order that notwithstanding his claim that it was not permissible for him to provide oral evidence in foreign court proceedings, the Court should order his attendance. Further, an application made on the first day of trial to amend the defence pleading was denied on the grounds that it would be unduly oppressive to do so at such a late stage.
• Harb v Aziz [2016] Ch. 308 (CA)
  In an appeal brought by a Saudi Prince in the hope of defeating Ian’s client’s claim, he sought to establish that there was state immunity for the estate of his deceased father, King Fahd of Saudi Arabia, in respect of private acts done whilst head of state notwithstanding his subsequent death. The appeal was dismissed and the Prince’s application for permission to appeal to the Supreme Court dismissed. The matter proceeded to trial before Peter Smith J (see above).
• ITL Mortgages v Burleigh (2015) Rose J (Ch D)
  Instructed by ITL in circumstances where its conveyancing  solicitors had failed to secure a charge over both constituent titles to the property in question, Ian obtained summary judgment for declaratory relief as to the disputed terms of the facility/mortgage and an order for rectification in circumstances where the borrowers were seeking to impugn the contractual interest rate by reference to the LIBOR manipulation of others.
• Garnham v Millar [2015] EWHC 274 (Ch), Newey J
  As part of a long-running probate matter, renewed allegations of fraud and professional breaches were levelled at solicitors and executors. These claims were successfully struck out and an extended civil restraint order imposed. See also below.
• Harris v Earwicker (2015), unreported: Chief Master Marsh
  The question arose whether the value of a bequest of an annuity was to be fixed, where the annuitant elected to have the capital, by reference to Government Tables or the price in the market. The case involved a review of nearly a century of authorities: as a result, it was held (contrary to the leading textbooks) that the value was to be determined by the cost in the market.
• Hubbard v Bank of Scotland [2014] PNLR 23 (CA)
  The appeal was successfully defeated on the basis that the surveyor owed no duty to recommend further or independent advice where (a) the limited extent of the report being provided was clear on its face, and the availability of more detailed reports was clearly described, and (b) where the opinion that there was no sign of current movement was a legitimate opinion for the surveyor to hold in the circumstances.
• Halcyon Offices Limited v Piggott (2014), Guildford CC
  Following a 5 day trial, an attempt to defeat an earlier settlement said to have been induced by the dishonest misrepresentation of the solicitor with conduct at the time was successfully defeated.
• Madoff Securities International Ltd (in liquidation) v Raven [2013] EWHC 3147 (Comm) Popplewell J
  C’s liquidators sought to recover US$33M from the directors (on behalf of one of whom Ian acted) and others on the basis of the directors’ allegedly fraudulent breaches of fiduciary duty. The claims were all dismissed. Issues that arose included: (a) the scope of the directors’ duties; (b) whether the Duomatic principle applied; (c) whether the directors enjoyed a defence of ex turpi causa (and the extent of the ability to attribute Bernie Madoff’s wrong to C); and (d) whether the directors had acted honestly and reasonably such that they ought to be excused under S.1157 of the Companies Act 2006.
• Bird v Iver Resources Ltd (2013) FTT (LR Division)
  B sought to establish on the facts a legal entitlement to register a matrimonial home rights notice under the LRA 2002 against Iver’s registered title (Iver being, on B’s case, a lessor to her husband, whose interest was not registered.) Despite judicial sympathy for Ian’s arguments, the claim failed.
• Hubbard v Bank of Scotland (t/a Colleys) [2013] EWHC 1021 (QB)
  H sought substantial six-figure damages arising from a negligent building survey on purchase. Ian was instructed for the valuer. The claim was dismissed: liability was not made out and H’s experts were undermined in cross-examination both as to their evidence and their independence.
• Garnham  Executors of Iris Bristow, Decased [2013] EWHC 4292 (Ch) Proudman J
  Mr Garnham sought to set aside a settlement and to claim damages of £1.38 million arising from the fraud and conspiracy which was said to have preceded and influenced him into settling earlier litigation. The claim was successfully defeated after a 4 day summary judgment hearing.
• Capita Alternative Fund Services (Guernsey Ltd) (formely Royal & SunAlliance Trust (Channel Islands Ltd) v Driver Jonas (A firm) (Eder J.) [2011] EWHC 2336 (Comm)
  Reported for the decision in relation to the subsequent claim for damages for professional negligence in connection with the valuation of a shopping centre, Ian secured the appointment of provisional liquidators at the outset of the litigation in order to preserve the commercial viability of the centre.
• Belfairs Management Limited v Sutherland Ch.D (Norris J.) [2010] EWHC 2276 (Ch) 59
  3 week trial concerning fraudulent misrepresentation on a sale of shares in a company. The claim against the vendor client was as to financial projections, treatment of work-in-progress and the feasibility of the underlying IT projects. Fraud claim was successfully defeated both on the alleged dishonesty of the representations and on the question of the purchaser’s reliance.
• Monem (A Bankrupt), Re (Norris J.) [2010] B.P.I.R. 1431
  A case concerning equitable charges and locus standi in relation to appeal.
• National Westminster Bank plc v Rushmer (Arnold J.) [2010] 2 F.L.R. 362
  R appealed the Master’s decision on the basis that he wrongly failed to consider or give effect to Article 8. Held: that it would be ordinarily sufficient for the Court to consider the factors specified in TOLATA s. 15 and thus satisfy the Convention requirements; explicit reference to the Convention was not required.
• Re: Ikin, deceased; sub nom Court v Despallieres (Arnold J.) [2010] 2 All E.R. 451
  Successful revocation of a grant of letters of administration on the basis of the deceased’s subsequent civil partnership and the will’s failure to comply with section 18B(3) of the Wills Act 1837 (wills made in contemplation of a civil partnership). The only decision on this provision and the similar provision on section 18 (wills made in contemplation of marriage).
• Re: Ikin, deceased; sub nom Court v Despallieres (2009) (Roth J.) 153 (38) S.J.L.B. 30
  Application to vary a freezing and proprietary injunction to enable D to use estate monies to fund his defence to an on-going claim for revocation of probate on the basis that the will admitted was a forgery.
• Invertec v De Mol (Arnold J.) [2009] EWHC 2471
  A claim for fraudulent misrepresentation by the purchasers of the share capital of a private company; judgment successfully for obtained for £2.5million against the vendor and the vendor’s director.
• Julian Shelton Palmer (T/A Cotswold Stone Quarries) v David Ingram (Receiver of the assets of Michael Richard Stannard) [2009] EWCA Civ 947
  Appeal against permission for the receiver to commence proceedings in the name of a dissolved Irish company, the assets of which had vested bona vacantia in the Irish Finance Minister. Issues included extent of state immunity in relation to property in which the state had an interest.
• Jones v Firkin Flood Ch.D (Briggs J.) [2008] EWHC 2417 (Ch)
  Trial of trustees’ claim for court approval of a particular course of action and of the counterclaim for their removal and assorted declaratory relief. The Court directed independent counsel to represent the interests of the minors and unborn beneficiaries at trial (for which Ian was instructed)
• First Independent Factors Limited v Mountford (Lewison J.) [2008] 2 B.C.L.C. 297
  Trial of a claim under s. 217 of the Insolvency Act for the Claimant. Issues raised in defence included whether the claim assigned was assignable, the name concerned was prohibited and whether a defendant could rely on section 727 of the Companies Act 1985 to be relieved of liability. The answers – yes, yes, no – led to judgment for the Claimant.
• Director of the Assets Recovery Agency v McCormack [2008] S.T.C. 1097
  A court had jurisdiction to grant a freezing order with regards to the defendant’s assets, as there was an existing cause of action due to the defendant’s obligation to pay tax on income earned that arose under the Taxes Management Act 1970, ss. 7 and 8.
• Churchill v First Independent Factors Limited CA [2007] B.C.C. 45; [2007] Bus.L.R 676
  Representing respondent in opposition to a second appeal concerning the interpretation of IR 4.228. CA gave leave for the appeal because the case, the arguments and the subject matter (phoenix companies) were of public importance. Case involved presenting the provisions of the rule in the context of the underlying policy/evil that it was designed to prevent and justifying that interpretation in the modern context and changes in the ethos of corporate rescue. Appeal was dismissed and has required those involved in MBOs to consider their methodology and approach. The decision led to a prospective amendment to the Insolvency Rules.
• Wren v Wren [2007] W.T.L.R. 531
  Intestacy – application for a grant of administration and revocation of probate. A copy of the will was discovered in unusual circumstances and then lost; only a copy of the copy remained. Was the copy will genuine and could the Claimant rebut the presumption of revocation that arose on the missing will? Court pronounced for the copy of copy will.
• Wester v Borland Ch.D (Norris J.) [2007] EWHC 2484
  A trustee seeking to exercise a right of lien over trust property as an indemnity against future liability had the burden of demonstrating that there were substantial grounds for exercising the right and that he had taken all reasonable steps to ascertain his liability.
• Neville (as administrator of Unigreg Limited) v. Krikorian CA [2007] B.C.L.C. 1
  Appeal from a summary judgment determination against a director for loans taken by managing director. Whether one director could be jointly and severally liable for indebtedness of another director – Companies Act 1985, ss 330, 341.
• Dadourian Group International Inc v Azuri Ltd [2006] W.T.L.R. 239
  Freezing order made against a third party company, the shares of which were held on trust. Whether that trust was a sham and whether the Court should have regard to the substantive control of assets when making a freezing order. Whether a previous freezing order was ‘continued’ or ‘not discharged’.
• Re a Company, No.s 16 and 17 of 2005 [2005] All ER (D) 126
  Application to restrain advertisement of a winding up petition and remove it from the court file. Whether the petition was an abuse of process.
• Re Ci4net.com Inc [2005] B.C.C. 277
  Article 3 of Council Regulation 1346; Centre of Main Interests of two foreign companies (USA and Jersey registered) in administration, for the purposes of winding up.
• Firstdale Limited v Quinton (Comm Ct) [2005] 1 All ER 639
  Claim form served on the defendant by an assignee of the cause of action. Whether the CPR required the claimant to serve the claim form on solicitors instructed by the defendant who had previously confirmed to the assignor that that they were able accept service.
• Re A Company (No 6410 of 2004) LTL 19.11.04
  Companies – Winding up petition – sufficiency of cross claim.
• Re a company (No 196 of 2003) [2003] All E.R. (D) 450
  Application by Secretary of State for appointment of provisional liquidator – Application for order restraining advertisement of winding up petition – Consideration of the various factors governing the appointment of a provision liquidator.
• Simoes v Fox Run Holdings Ltd [2003] All E.R. (D) 357
  Claim by a neighbouring tenant against his lessor and a neighbouring lessee of the lessor. Use of a ground floor room for storage above a basement restaurant in Beauchamp Place, SW3. Breach of covenant for quiet enjoyment and nuisance causing loss of business custom and damages.
• Cohen v Selby [2002] B.C.C. 82 (CA)
  Successful defence of a director in misfeasance proceedings brought by a liquidator in relation to some stoplen diamonds.
• Howard v Kinvena Homes Ltd  CA (2000) 32 H.L.R. 541 (CA)
  Construction of a pitch agreement in realtion to a mobile homes site.