Justin
Kitson

Justin’s commercial work includes acting in disputes concerning contracts, partnerships, joint ventures, agency agreements (including estate agent’s commission), guarantees and indemnities, conversion of goods, restitution, breaches of duty by directors and other fiduciaries, and minority shareholder and derivative actions.

Among many other cases, Justin has acted in the following disputes:

• A sensitive appeal before the Court of Appeal acting on behalf of a well-known finance house, where the defendant attempted to avoid enforcement with new allegations fraud.
• Preliminary issues in High Court family proceedings that involved the ownership of Liberian registered sea vessels and other high value assets that it was contended were marital assets and the subject matter of a complex fraud on the Revenue.
• Alleged breach of restrictive contractual covenants in relation to commercial agreements entered into between a UK company and an African nation state
• A £150 million dispute involving the demerger of a large gaming organisation leading to 2 trials and 2 trips to the Court of Appeal.
• Highly contentious insolvency proceedings arising from deadlock in a joint venture for the development of a former mill in West Yorkshire.
• Construing highly unusual terms in shareholder and partnership agreements that required shareholders and partners to hold and practice a particular religion
• Various petitions under section 994 of the Companies Act 2006.

Justin’s work in landlord and tenant involves disputes concerning forfeiture, interim and terminal dilapidations, break notices, lease renewals, rent reviews, breaches and the enforceability of leasehold covenants, service charges and all other types of landlord and tenant issues.

Among many other cases, Justin has acted in disputes concerning:

• The commercial development of a retail outlet car park in alleged breach of a commercial tenant’s leasehold covenants.
• The premises of a very well-known retailer collapsing into a previously unknown World War I tunnel network used for training.
• The highly contentious termination of a commercial lease of an iconic building in central Manchester using ground (f) of the Landlord and Tenant Act 1954.
• Contractual construction of rent review disregards in a lease of premises at a British port, the subject matter of the lease concerning the import of North Sea oil.
• Acting for a port authority seeking possession of very many acres of land used for the storage of Covid NHS waste in order to enable works to construct one of the Government’s flagship post-Brexit freeports.
• Various lease renewals for a large supermarket operator
• A multi-million pound dilapidations claim.

Justin’s work in the arena of media and entertainment includes disputes concerning the creation, operation, and termination of music partnership agreements, song authorship rights, royalty entitlements, Performance Rights Society (PRS), agency and management disputes, together with distribution rights in media and film.

In recent years Justin has acted in:

• Copyright litigation arising from the disputed ownership of one of the most famous pop songs from the late 1970s.
• A dispute concerning the correct jurisdiction (E&W, California or New York) to hear a valuable back-catalogue dispute for music distributed on Spotify.
• A dispute involving music ownership and performance rights in a well-known 1980s television series.
• Hard fought partnership disputes arising from the break-up of a well-known rock band.
• A £30 million dispute involving the alleged negligent drafting of music contracts.
• A cross-border dispute concerning the release in France and French speaking territories of the box-set for a highly popular television drama series.

Justin often acts in professional liability claims relating to his core practice areas. Among other cases, he has acted in disputes concerning:

• The negligent drafting of leases, including an RPI rent review provision in hundreds long residential leases for properties acquired by very large investment fund.
• A £30 million claim brought by a music producer in relation to the allegedly negligent drafting of music contracts.
• A considerable number of professional negligence claims brought by institutional lenders against solicitors and surveyors.
• A claim involving an electricity operator that had allegedly failed to keep sufficient mapping records of its mains cables, which were struck during piling works for a large commercial development.
• The Communications Code introduced by the Digital Economy Act 2017 (various test cases in the Upper Tribunal, the Court of Appeal and Supreme Court).

Justin’s real property work includes disputes involving easements, restrictive covenants, overage agreements, options, trusts of land and rectification claims. He also has considerable experience in matters relating to land registration.

Among many other cases, Justin has acted in disputes concerning:

• Sporting rights on a large private estate in North Yorkshire.
• The release of restrictive covenants precluding the use of commercial premises by a large supermarket operator.
• The registration of implied and prescriptive easements on first registration where all the land’s deeds and documents of title had been lost.
• The rights of a national telecoms provider to access a multi-million pound UK-wide underground network of fibre-optic cabling.
• A dispute involving joint venture and option agreements relating to substantial commercial and residential developments.
• The Communications Code introduced by the Digital Economy Act 2017 (various test cases in the Upper Tribunal, the Court of Appeal and Supreme Court).

Justin acts in disputes involving relating to family and property trusts, wills, dispositions of equitable interests, the removal and replacement of trustees (in and out of court), trust variations, fiduciary duties and the proper interpretation of trusts deeds and wills. Among many other cases, Justin has acted in disputes concerning:

• The application of the Forfeiture Act 1982 and ECHR principles to the unusual situation where grandchildren had been denied the right to benefit from a multi-million pound trust fund as a result of their father murdering their grandfather and committing suicide immediately thereafter.
• Leading cases before the Court of Appeal on the characterisation of and requirements for common-intention constructive trusts and efficacy of trustee exoneration clauses.
• The removal of executors and trustees for alleged breach of fiduciary duty and self-dealing.
• The proper construction of terms of a multi-million pound will.

Close Brothers Ltd v. Rooster Trucking Co Ltd [2023] EWCA Civ 533

Justin was instructed in the Court of Appeal to lead first-instance counsel. The claim had a long and complex factual and legal background and involved an important legal question of whether, in light of the recent decision of the Supreme Court in Takhar v. Gracefield Developments Ltd [2020] AC 450, the enforcement of judgments could be stopped where new grounds of fraud had been alleged at the enforcement stage. Following a forensic analysis of transcripts from very many hearings and other documentation, the appeal from the Manchester District Registry was refused.

On Tower UK Limited v. AP Wireless II (UK) Limited [2022] UKSC 18

This was a landmark case in which Justin led Kester Lees at Falcon Chambers. The appeal concerned the interpretation and application of the new communications code and its transitional provisions (introduced by the Digital Economy Act 2017). At a February 2022 hearing lasting 3 days, the Supreme Court had to consider the workings of the legislation and in particular, the jurisdiction of the Upper Tribunal to impose agreements on landowners for the continuing provision and upgrading of communications infrastructure throughout the UK (such as, for example, the rolling out of 5G technology). This was the first time that the Supreme Court had been afforded the opportunity to consider the highly contentious legislation, and an equally contentious decision of the Court of Appeal in Cornerstone Telecommunications Infrastructure Limited v. Compton Beauchamp [2019] EWCA 1755.

Justin acted for On Tower UK Limited. At first instance ([2020] UKUT 0195 (LC)], he argued that the Court of Appeal’s reasoning in Compton Beauchamp was wrong. The trial judge agreed but was bound to follow the higher court’s decision. Justin applied successfully for a leapfrog certificate to appeal directly to the Supreme Court, which agreed that the Court of Appeal had erred and has allowed On Tower’s appeal.

Demetriou v. Mapara [2022] EWCA Civ 1001

Justin and his junior, Lara Keuhl, were instructed around a week before a hearing in the Court of Appeal in a case concerning the rights of a religious community to bury their dead. A significant point had not been argued at first instance, and to succeed at the appeal, it was critical to bring a late application for permission to amend the grounds of appeal drafted by former counsel to attack part of a declaratory order. After challenging argument before the Court of Appeal, permission to do so was refused.

On Tower UK Ltd. v. JH and FW Green Limited [2021] EWCA Civ 1858

Justin acted successfully in the Court of Appeal on the appeal of a decision of the Upper Tribunal concerning a test-case application for a new Communications Code agreement and the terms of the new agreement. The court found that having regard to an existing code agreement did not mean that the new agreement had to be the same or similar to that existing agreement. Paragraph 17 of the code concerned upgrading and sharing rights, and on its proper statutory interpretation, did not represent the ceiling of the rights that could be granted, but rather the starting point for the tribunal’s considerations. Led by Oliver Radley-Gardner KC at Falcon Chambers.

Crowther v. Crowther [2021] 1 W.L.R. 2705

Justin, leading Alice Hawker at Wilberforce Chambers, appeared in preliminary issue hearings before Lieven J. concerning the ownership of sea vessels and other high value assets subject to injunctions and in the context of alleged tax fraud and money laundering. Justin successfully argued that, after the party alleging fraud had abandoned the allegations, the Family Court should consistently adopt CPR principles contained in CPR 38.6 and order that party to pay costs on the indemnity basis. This would ensure a uniform approach by the different divisions of the High court (despite there being no like provision in the Family Procedure Rules 2010). In a decision considered by many family practitioners to be controversial, the court accepted Justin’s submissions and made a forthwith indemnity costs order.

Ditto Ltd v. Drive-Thru Records LLC [2021] EWHC 2035 (Ch).

Justin acted in a highly contested jurisdictional dispute concerning rights to exploit a large back-catalogue of pop music. The possible jurisdictions were England & Wales, California and New York. Agreeing that claims for breach of contract and tort arising out of agreements between English and Californian entities satisfied the jurisdictional gateways in CPR PD 6B paragraphs 3.1(6) and 3.1(9), the court went on to find that England was not the best forum to resolve the claims. An earlier court order giving permission to serve proceedings out of the jurisdiction was set aside.

Arqiva Services Ltd v. AP Wireless II (UK) Ltd [2020] UKUT 195 (LC)

Justin acted for the major telecommunications infrastructure operator, Arqiva, in a critically important case for operators involving the statutory interpretation and policy of the Communications Code introduced by the Digital Economy Act 2017, and the circumstances in which the court will find that a telecoms operator has a tenancy at will or periodic tenancy. Justin having been successful on nearly all points argued, the court found that it was bound by the decision of the Court of Appeal in Cornerstone Telecommunications Infrastructure Ltd v. Compton Beauchamp. Justin successfully applied for the rarely granted leapfrog certificate for an appeal to the Supreme Court.

Cornerstone Telecommunications Infrastructure Ltd v. Ashloch Ltd [2019] UKUT 338 (LC)

Justin intervened on behalf of Arqiva Services Limited in an important case involving the construction of the Communications Code and its transitional provisions in relation to the jurisdiction of the Upper Tribunal to order new code agreements where operators have a 1954 Act tenancy with an expired contractual term. Permission to appeal has been granted by the Court of Appeal.

Moylett v. Geldof [2018] EWHC 893 (Ch)

Justin successfully resisted an application to strike out parts of expert evidence at the PTR of a music copyright trial to be heard imminently in the Chancery Division.

James Hall v. Maughan (Restrictive Covenants) [2017] UKUT 240 (LC)

Justin successfully advanced a claim in a Upper Lands Tribunal for the release of restrictive covenants relating to the user of a community interest building.

Clifford Chuku v. Owen Chuku to [2017] 1 W.L.R. 3137

Justin appeared before Newey J. in an appeal concerning the court’s jurisdiction and exercise of discretion when considering applications for security for costs. The case is of particular interest in the context of counterclaiming defendants seeking security.

Barnsley & Others v. Noble [2016] EWCA Civ 799

Justin appeared in the Court of Appeal in a dispute concerning the public policy limitations of trustee exoneration clauses.

Barnsley & Others v. Noble [2014] EWHC 2657 (Ch)

Justin appeared for the Claimants before Mr. Justice Nugee in a 7 week trial in the Chancery Division in £150 million claim for breach of contract, deceit, and breach of fiduciary duty.

Barnsley & Others v. Noble [2013] 2 Costs L.O. 150

Hearing before Mrs. Justice Proudman concerning whether the court had jurisdiction to order a payment on account where there had been discontinuance under r.38.6, and if it was appropriate to do so.

Crossco No.4 Unlimited v. Jolan Ltd [2012] 2 All ER 754, [2012] 1 P&CR 16

Justin appeared for the successful Respondent in an important case in which the Court of Appeal considered the nature and applicability of the common intention constructive trust in a commercial context.

Crossco No.4 Unlimited & Ors v. Jolan Ltd & Ors [2011] EWHC 803 (Ch.D), [2011] NPC 38

Justin appeared for the successful Defendant in a 36-day trial before Morgan J concerning the right of a landlord to determine a business tenancy of large commercial premises in Manchester Piccadilly. The case involved complex factual and legal arguments concerning the 1954 Act, rectification, constructive trust and estoppel.

Frasers Islington Limited v. the Hanover Trustees & Others [2010] EWHC 1514 (Ch.D)

Justin appeared for Hanover in an important case concerning the extent to which equity will assist a claimant by making an order for the specific performance of an option in circumstances where the party seeking the relief is itself in breach of the contract that contains the option.

Eileen Corr v. IBC Vehicles Limited [2008] 1 AC 884

Justin appeared for the Appellant Insurer in the House of Lords in an important negligence case involving scope of duty, novus actus, causation and contribution.

Golden Grove v. Chancerygate Asset Management Limited [2007] EWHC 968 (Ch.D)

Justin appeared for the Appellant in the Chancery Division. Interpretation and application of CPR provisions relating to an application for security for costs against a BVI company which had failed fully to disclose its assets, the location of its assets and its liabilities. 

Handf Acceptances Limited v. Russell [2007] EWHC 1273 (QB)

Justin appeared for Handf Acceptances in recovery of a mortgage debt flowing from a £1.2 million bridging advance.  Allegations of dishonesty and fraud. 

CI Ltd v. Joint Liquidators of Sonatacus Limited [2007] BCC 186 (CA)

Justin appeared for the Joint Liquidators in the Court of Appeal. Recipient of a benefit from a payment, voidable as a preference under the Insolvency Act 1986 s.239, could not retain that benefit where it had not shown that it had acted in good faith within s.241(2) of the Act.  

Total Spares & Supplies Ltd. & Another v. Antares SRL & Others [2006] EWHC 1537 (Ch.D)

Justin appeared in A Leading High Court authority on the jurisdiction of the court to order a non-party to pay costs, notwithstanding the fact that it was not causative of any costs being incurred.

Barber and Henry v. CI Limited (2006) BCC 927

Whether consideration amounting to a preference, voidable at the instance of a liquidator, could be regarded as constituting a valuable consideration for the purpose of defeating a transaction at an undervalue claim under s.238 Insolvency Act 1986)
. 

CA Webber (Transport) Ltd v. Network Rail Infrastructure Ltd [2004] 1 WLR 320

Having succeeded at the first instance trial, Justin successfully represented Railtrack in the Court of Appeal on the undecided legal point whether a notice served under section 25 of the Landlord and Tenant Act 1954 by recorded delivery was deemed served when posted, rather than when received by the addressee and whether such an approach was compatible with Art.6 and Protocol 1 Art. 1 of the European Convention on Human Rights. The Court of Appeal decision remains one of the leading cases for commercial lease renewals under the 1954 Act.

The London Mews Company v. Burney [2003] All ER (D) 66

Justin acted for The London Mews Company in both a first appeal and second appeal to the Court of Appeal. The case concerned what constituted an ‘effective cause of sale’ and an ‘introduction’ for the purposes of entitling an estate-agent to commission.

Halley v. The Law Society [2002] All ER (D) 182 and [2003] EWCA Civ 97

Justin appeared in both the Chancery Division and Court of Appeal in a claim for monies held in the client account of a solicitor whose practice had been intervened. The dispute concerned principally allegations of money laundering and advance fee fraud and public policy considerations that arose therefrom.

“Leading Junior” in Real Estate Litigation since 2006 (Legal 500 & Chambers & Partners)

“Leading Junior” in Professional Negligence since 2009 (Legal 500)

“Leading Junior” in Media and Entertainment since 2017 (Legal 500 and Chambers & Partners)

“Leading Expert” in Property Law (Legal Experts)

“Justin Kitson has an unparalleled eye for detail. He is able to assimilate large amounts of information, from multiple sources, quickly without fuss or fluster. He communicates brilliantly at all levels to provide sound and valuable advice to clients, putting them at ease and giving them a clear path as to options in the litigation.” (Professional Negligence, Legal 500: 2023)

“Justin is able to assimilate a significant volume of information and identify what is important. He spends significant time examining the details and produces impressive written work as a result. (Property Litigation.” (Property Litigation, Legal 500: 2023).

“Justin is very good at getting to the heart of the issues and plotting a course through particularly thorny matters. His advice is clear and responsive. His advocacy in particular is excellent; the points made are succinct and compelling.” (Media & Entertainment, Legal 500: 2023)

 “A formidable advocate with an ability to assimilate a vast amount of information in a short space of time whilst applying the law swiftly and effectively, to provide detailed, practical and realistic advice. Always accommodating and goes more than the extra mile to make sure of a first rate service every time.” (Property Litigation, Legal 500: 2022)

“A formidable advocate. He is always accommodating and goes more than the extra mile to make sure of a first-rate service every time.” (Professional Negligence, Legal 500: 2022)

“He is an excellent barrister with his written work serving as a particular strength.” Property Litigation, Legal 500: 2021)

“He has a real eye for both the overall detail and the key point that wins cases” (Professional Negligence, Legal 500: 2021).

“He can read a situation and develop a clear strategy that pays dividends in the success of a case, be it at trial or settlement” (Media and Entertainment, Legal 500: 2021)

“He’s an excellent barrister. Justin is amazing at understanding people and has a really good way with clients. He’s a ruthless cross-examiner.” “He is dynamic in court, very intelligent and great on both paperwork and advocacy” (Media and Entertainment, Chambers & Partners: 2021)

“Justin has outstanding technical proficiency, coupled with the fact that he is very approachable, his communication skills are excellent, and he can explain things to the clients in layman’s terms.” “A great team player who really gets involved in the detail” (Real Estate Litigation, Chambers & Partners: 2021)

“He has developed a considerable media practice and acts in significant contractual, copyright and royalty disputes in the music industry.” (Media and Entertainment, Chambers & Partners: 2018)

“He has a great deal of expertise in property-related professional negligence, and regularly handles high-value property disputes more generally. His recent cases have involved easements, sales contracts and restrictive covenants, as well as conveyancing disputes and dilapidations matters. (Real property Litigation, Chambers & Partners: 2018)

“A very bright and hard-working barrister who we use on some of the most complex cases”, and “Absolutely brilliant at client service, he always goes out of his way and is very generous with his time. You get the impression that he does what he does because he loves helping clients.” (Real property Litigation, Chambers & Partners: (2018)

 “A formidable trial barrister who is thorough and tactically savvy’ (Media and Entertainment, Legal 500: 2018)

“He is prepared to get into the detail of a matter and is a great team player.” (Professional Negligence, Legal 500: 2018)

“His written work and advocacy are first rate, dictates a clear approach” (Property Litigation, Legal 500: 2018)

“He is clever, commercial, hardworking and always willing to assist” (Property Litigation, Legal 500: 2017)

“He has a great legal mind, which he combines with an excellent client manner” (Professional Negligence and Media and Entertainment, Legal 500: 2017)

“Devastatingly effective” (Professional Negligence, Legal 500: 2016)

“Very charming, highly clever and happy to adapt to the client needs” (Media and Entertainment, Legal 500, 2016)

“Justin Kitson is a ‘brave and tough’ advocate who is ‘great on cross-examination.’  According to one respected QC he ‘does the research and gets the right points’ and allied to this, ‘he manages to make things fun’” (Chambers and Partners, 2013).