Ian Clarke QC

1990 QC: 2016

Selborne Chambers
10 Essex Street
London WC2R 3AA
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020 7420 9500

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Chambers & Partners 2019Legal 500 2019

Ian took silk in 2016, shortly after his appointment to the Attorney-General’s A Panel of Counsel the previous year. Ian is ranked in both Chambers and the Legal 500 for his expertise in the four core areas of his practice: Commercial and Real Estate/Property litigation, Professional negligence and Private client (wills and trusts).

Rated as “fluent and persuasive in his advocacy, which is razor-sharp in its delivery; is utterly committed to the case” and being “extremely bright and focused on client interests and commercial considerations” he is “the person you would want to defend your corner”. He builds a good rapport with clients, with whom “[he] engages well…. and has his own particular style – direct, to the point and with good humour”.

Ian’s practice involves substantial commercial contractual disputes, breaches of fiduciary duty by directors, trustees, joint-venturers and personal representatives, all civil aspects of fraud, trusts, insolvency and professional negligence and conflict of laws. He also regularly undertakes instructions relating to land (especially on land registration matters) and mortgages (on which he co-edits one of the two practitioner texts). He has acted as an expert in foreign proceedings and frequently leads other juniors in his cases.

His clients range from international corporations, banks and lending institutions and insurers to private individuals. To all these matters, Ian brings the practical, well-informed and responsive approach for which he is commended.

Recent instructions have included cases in the Cayman Islands, Gibraltar and before ICC and other arbitral tribunals as well as before the Stewards of Appeal for the British Boxing Board of Control in addition to matters proceeding in the High Court and above. As for their subject matter, Ian has a recently finished an 8 week trial concerning allegations of tortious conspiracy, knowing assistance and dishonest breach of fiduciary duty (including misfeasance in public office); successfully resisted an anti-suit injunction and challenged jurisdiction; advised and commenced litigation in support of specific performance of a shareholders’ agreement; advised in relation to the lease and joint-venture agreement concerning a photo static electricity generating station as well as advising upon and bringing and defending claims arising from corporate insolvency, the ownership of and security over land, the administration and devolution of deceased persons’ estates, the removal and liabilities – including the liability to account – of trustees, alleged breaches of a Tomlin order on the sale of a financial services business and the professional negligence of solicitors and the liability of their insurers in the context of professional negligence, possibly involving fraud. He has recently settled English law guarantees in relation to a multibillion-dollar contract for the supply of crude oil.

Ian has written several books (including Wolstenholme & Cherry’s Land Registration Act 2002 (2003)) and has co-edited editions of Cousins on the Law of Mortgages.He is a Judge of the First Tier Tribunal (Property Chamber) and prior to that a Deputy-Adjudicator to HM Land Registry (since 2004)

Please see Ian’s Privacy Notice here.

Notable cases

Brent LBC v Evans [2018] EWHC 3129 (Ch) (Zacaroli J).
Having heard further argument from Ian 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.

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