Duncan
Kynoch

Duncan has appeared in numerous reported and significant commercial High Court and Court of Appeal cases.

Duncan’s chancery/commercial practice encompasses:

• acting for a satellite TV manufacturer in a claim against its steel suppliers (KLM Steels Ltd v Global Invacom Ltd, Commercial Court, 2016).
• acting for a solicitor disputing recovery of a professional practice loan (Royal Bank of Scotland Plc v McCarthy, QB Div, 2015) and
• commercial contracts (Acre 1127 Ltd v De Montfort Fine Art Ltd, Court of Appeal, 2011; RugbyGroup Ltd v ProForce Recruit Ltd, Court of Appeal);
• consumer contracts (Friarwood Ltd v Champagne Cattier SA, Court of Appeal; Batooneh v Asombang, QB Div);
• company law and shareholder disputes (Jordan v Roberts, Ch Div, 2009; Kolomoisky v Shahar, Ch Div);
• insolvency (Rubin v Coote, Court of Appeal, 2011; Howcutt v GS Property Developments Ltd, Ch Div);
• fraud and asset recovery (Hardy v Washington Green Fine Art Publishing Co Ltd, Court of Appeal, 2010).

Duncan regularly advises and appears for property owners and investors. Most recently, Duncan succeeded (in the First Tier Property Tribunal, and on appeal before the Upper Tribunal) in a claim for adverse possession against the Port of London Authority in a dispute over part of an Island in the River Thames (Port of London Authority v Stapleford Frog Island (Rainham) Ltd [2017] UKUT 444 (TCC).

Duncan has appeared in significant property cases in the High Court and Court of Appeal, including:

• restrictive covenants (Re Barter’s application, Nov 2017, [2017] UKUT 451 (LC));
• development disputes (BNP Paribas Jersey Trust Corporation v Marshall Street Regeneration, Ch Div, 2015);
• boundaries/party walls (Nelson’s Yard Management Co v Eziefula, Court of Appeal, 2013);
• property and constructive trusts (De Bruyne v De Bruyne, Court of Appeal, 2010; Bradbury v Hoolin, Ch Div);
• boundaries and rights of way (Waterman v Boyle, Court of Appeal, 2009);
• landlord and tenant (Jacey Property Co Ltd v De Sousa, Court of Appeal; Heartpride Ltd v Sawhney, Ch Div; Carmel Southend Ltd v Strachan & Henshaw Ltd, TCC);
• business tenancies (Capita Trust Co (Channel Islands) Ltd v Chatham Maritime J3 Developments Ltd, Ch Div).

Port of London Authority v Stapleford Frog Island (Rainham) Ltd [2017] UKUT 444 (TCC); the case concerned a dispute over an island in the River Thames known as Frog Island, Rainham. The Port of London Authority claimed ownership of the disputed foreshore of the island (on which land stood London’s largest waste disposal plant, owned by Duncan’s clients). Duncan succeeded in a claim for adverse possession of the disputed land for his commercial clients.

Re Barter’s application, Nov 2017, [2017] UKUT 451 (LC): a claim to relax/modify a restrictive covenant over a developer’s land.

Royal Bank of Scotland Plc v McCarthy [2015] EWHC 3626 (QB); the case involved a defence by a solicitor to a loan action that his bank had wrongly procured a breach of his firm’s undertaking to repay his professional practice loan which the solicitors’ firm (Haliwells) had failed to honour upon its administration.

KLM Steels Ltd v Global Invacom Ltd [2016, Commercial Court); the case concerned a dispute over the termination of a steel supply contract to a TV satellite manufacturer.

Nelson’s Yard Management Co v Eziefula [2013] EWCA Civ 235 (Court of Appeal): a party wall case on the facts; but one of the first reported decisions on the circumstances in which the court might depart from the ‘default’ costs position under CPR r.38.6(1) following the discontinuance of proceedings. Duncan acted for the successful appellant.

Acre 1127 Limited (in liquidation) v. De Montfort Fine Art Limited [2011] EWCA Civ 130 CA (Civ Div) (Court of Appeal): whether a seller was entitled to claim damages for loss of profits for a buyer’s failure to place orders under a rolling supply agreement in respect of the period during which the seller no longer expected a buyer to fulfil its obligations. Duncan acted for the partially successful appellant.

Rubin v. Coote (2011) EWCA Civ 106, CA (Court of Appeal): guidance on the court’s exercise of its discretion in sanctioning a liquidator’s compromise against the wishes of the majority creditor of the insolvent company. Duncan acted for the unsuccessful appellant.

Tracey Ann De Bruyne v. John Adrian De Bruyne & others [2010] EWCA Civ 519 CA (Civ Div) (Court of Appeal): the Court of Appeal upheld the trial judge’s finding that a constructive trust arose in relation to family shares procured by a father which were intended for the benefit of his children. Duncan acted for the successful respondent.

Maxine Hardy v. Washington Green [2010] EWCA Civ 198 (Court of Appeal): Court of Appeal overturned the findings of fact of the trial judge where the judge hearing the case had erred in drawing an adverse inference that a senior officer of the client gallery was personally and dishonestly liable in respect of the misappropriation of a valuable painting in circumstances where it had not been pleaded that he was a thief and he had not given evidence. Duncan acted for the successful appellant.

Waterman -v- Boyle [2009] EWCA Civ 115 (Court of Appeal): one of the leading the leading English cases concerning implied rights to park in a residential context. Duncan acted for the successful appellant.

Jordan & Fazzani v. Roberts, Binns & Home Assistance Services Ltd [2009] EWHC 2313 (Chancery Division) a dispute between 50/50 shareholders of a company over a fraudulent shareholders’ agreement and bogus share allocations by directors. Duncan acted for the successful Claimants.

Lidl GMBH v Just Fitness Ltd [2010] EWHC 39 (Chancery Division): reasonableness of a landlord’s consent to assignment; whether arbitrator had jurisdiction to determine the issue.

Hellenic Republic v Yannis Valambous, Lawtel (QB) 29/9/2008: dispute over the “Icon of Greece”.

Carmel Southend Ltd v Strachan & Henshaw Ltd (QB Division; TCC): [2007] EWHC 1289 (TCC); [2007] 3 E.G.L.R. 15: construction of a repairing covenant in a dilapidations case; whether roof replacement within the repairing covenant.

Howcutt v GS Property Developments Ltd [2006] EWHC 3271 (Chancery Division): grounds to set aside a statutory demand.

Capita Trust Co. Limited v Chatham Maritime J3 Developments (Chancery Division) Lawtel 29/8/2006: injunctive relief compelling a company to grant an underlease of a retail unit where the landlord’s failure to grant the underlease amounted to a breach of good estate management.

Proforce Recruit Limited v Rugby Group Limited [2006] EWCA Civ 69 (Court of Appeal): where admission of extrinsic evidence permissible in interpretation of contracts where the parties themselves had given a meaning to ambiguous contractual words.

Friarwood v Champagne Cattier [2006] EWCA Civ 1105 (Court of Appeal): retrial ordered where the trial judge had applied the wrong test of satisfactory quality to a consignment of champagne.

The Representative Body of the Church in Wales v Newton & others QB [2005] EWHC 631: agreement for the sale of a business including the assignment of a lease was void under s.2 Law of Property (Miscellaneous Provisions) Act 1989 in the absence of writing and where no constructive trust arose.

Shahar v Tsitsekkos and Others (Chancery Division), The Times 30.11.04: where a defendant wished to claim against a non-party outside the jurisdiction he should apply to the court for an order adding that person, and that claim had to be treated as if it were a counterclaim under CPR Part 20.3 and 20.5.

Jacey Property Co Limited v Miguel De Sousa & others (Court of Appeal) [2003] EWCA Civ 510 CA: construction of leasehold user and repairing covenants.

Branchempire Limited v Coote (Chancery Division): Lawtel 16.6.2003: landlord companies appealing against judgments for residential disrepair for £858,000 had to show good credible reason why they could not fund their appeals in seeking to set aside financial conditions attached to permission to appeal.

Batooneh v Asombang; Queens Bench, Lawtel, 31.7.2003: whether loan interest of 25% p.a. was appropriate under the Consumer Credit Act 1974.

Bradbury v Hoolin (Chancery Division), Lawtel, 12.5.98: whether a resulting trust in favour of claimant arose in relation to money used to purchase a property.

Solicitors comments about him include:-

“Duncan is an extremely able and effective with a finely tuned commercial approach”…

“a tenacious and unflappable advocate in court” …“He fights very hard for his clients, and likes to win”

“bright, calm and client-friendly, a joy to work with … always adds value”

Chambers and Partners (2018) said:

“Punchy and not afraid to say controversial things”.. “He is a superb wit and a man of great personal integrity.”