Chancery Judgments

The judgments of notable cases decided in the Division will be published here.

Notable cases:

Judgment summaries:

Margulies v Margulies (Sir Julian Flaux C)

Wills; Strike Out; Cause of Action Estoppel; Issue Estoppel; Res Judicata; Abuse of Process; Secret Trust

The claimant and defendant were brothers, involved in a 31-year dispute over their late father’s estate. In 2000, the Court of Appeal upheld the striking out of a previous claim where the claimant said that he benefited from the estate via a secret trust. He issued fresh proceedings in 2022, alleging that his father had left money in a Swiss bank account on trust for him.

The Chancellor granted an application to strike out the claim on res judicata grounds. The claim was barred by cause of action estoppel, as it was a subset of the previous, wider claim. Alternatively, it was barred by issue estoppel, as it asked the court to decide the same question twice: had the father declared a trust over some of his assets before his death? There were no special circumstances that made it unjust to bar the claim for issue estoppel. The claim was also an abuse of process.

The full judgment [2022] EWHC 2843 (Ch) may be found on the National Archives website (external link).

Hugh Grant v News Group Newspapers Limited (Fancourt J)

Misuse of private information; Phone hacking; Summary judgment; Limitation; Concealment; date of knowledge

The claimant alleges that The Sun newspaper misused private information by, for example, hacking his voicemail. The defendant applied for summary judgment, arguing that the claim was time-barred.

Under the Limitation Act 1980, the six-year time limit on a tort claim does not start where the defendant conceals facts from the claimant that are relevant to the claim. Instead, it starts when the claimant discovers, or reasonably could have discovered, the concealment.

The judge held that this was an “all-embracing claim” about unlawful information gathering (“UIG”). Therefore, assuming that there was concealment, the clock started when the claimant knew, or could reasonably have known, that UIG was being used against him, even if he did not know about each specific incident. However, each type of UIG (e.g., phone hacking, bugging his house) had its own time limit.

On the evidence currently before the court, the claimant knew or ought to have known by January 2016 that he had a claim in relation to The Sun hacking his voicemail. Those allegations were time-barred. However, when the claimant first knew or could reasonably have known that The Sun may have been using other UIG methods against him needed to be determined at trial.

The full judgment [2023] EWHC 1273 (Ch) may be found on the National Archives website (external link).

Virgin Media Limited v NTL Pension Trustees II Limited and ors (Bacon J)

Occupational pensions; Contracted out schemes; Statutory interpretation; Revaluation; Trust deeds

The claimant runs a “contracted-out” pension scheme for employees who worked for it between 1991 and 2010. To qualify as contracted-out, the pension scheme had to pass a quality check. This is called the “reference scheme test” and is set out in the Pensions Schemes Act 1993.

In 1999, the pension scheme was made less generous. The 1993 Act, and Regulations passed under it in 1996 (both subsequently amended) say that a contracted-out scheme “cannot be altered” unless an actuary confirms in writing that the scheme continues to pass the reference scheme test.

The claimant does not know if it got this confirmation. The judge held that, if no confirmation was obtained, the changes made in 1999 were void. The words “cannot be altered” are clear and unambiguous. The changes have no effect on pension benefits accrued both before and after 1999.

The full judgment [2023] EWHC 1441 (Ch) may be found on the National Archives website (external link).

Re Bulb Energy Limited (Michael Green J)

Administrators; Court-appointed assessors; Energy supply company administration; Expenses; Remuneration

Energy supply company ‘Bulb’ became insolvent in 2021. Administrators were appointed. After Bulb was sold, the administrators asked the court to approve their remuneration.

Under the Energy Act 2011, the administrators’ objectives are to ensure that energy supplies continue at the lowest reasonable cost and that the company is rescued or sold. The Insolvency Practice Direction says their payments must be “fair, reasonable and commensurate” with the work they do.

The judge felt unable to decide if the objectives had been met or if the remuneration was reasonable without a report from a court-appointed insolvency expert. The report found that the payment was reasonable; the administrators met their objectives, the insolvency was complex and there was no obvious alternative strategy they could follow. The judge agreed, approving the payments.

The full judgment [2023] EWHC 1647 (Ch) may be found on the National Archives website (external link).

Charles Anthony Joseph Steel v Spencer Road LLP (trading as The Omerta Group) (Bacon J)

Employment contract – Discretionary bonus – Clawback provision – Restraint of trade

Mr Steel was employed by Omerta. Under the terms of his employment contract, Mr Steel received an annual discretionary bonus, which he was liable to return if he either left or gave notice of leaving Omerta within three months of receiving it. Mr Steel gave notice within the three-month period following his 2022 bonus, and Omerta sought to recover the bonus by serving a statutory demand. Mr Steel sought to set aside the statutory demand, contending that the clawback provisions of the contract amounted to unenforceable restraint of trade or penalty clauses. His application was dismissed by ICC Judge Mullen, and Mr Steel then appealed the finding as to restraint of trade.

In dismissing the appeal, the court held that a bonus clawback provision which is conditional on the employee remaining in employment for a specified period of time operates as a disincentive to the employee resigning, but that does not turn the provision into a restraint of trade where the provision does not impose any restrictions on the employee’s right to take up new employment thereafter. This followed from established precedent, including Tullett Prebon v BGC [2010] EWHC 484 (QB), which the court considered was correctly decided.

The full judgment [2023] EWHC 2492 (Ch) can be found on the National Archives website (external link).

Mortgage Five Zero Limited v Secretary of State for Business and Trade (Adam Johnson J)

Deeds; Mortgages; Winding-up order; Extended civil restraint orders; Corporate personality

The company Mortgage Five Zero (“MFZ”) provided legal services encouraging homeowners to challenge the validity of their mortgages. It claimed that a mortgage deed was invalid if the mortgagee (e.g. the bank) did not sign it, despite Lord Neuberger rejecting this argument in Helden v Strathmore Ltd [2011] EWCA Civ 542. The court wound up MFZ on public interest grounds in April 2023.

Mr Campbell, the director of MFZ, made umpteen applications challenging the winding-up order. Adam Johnson J dismissed almost all these as being totally without merit. Moreover, Mr Campbell had no authority to make some of the applications on MFZ’s behalf once it was wound up.

The judge then considered making an Extended Civil Restraint Order (“ECRO”) against Mr Campbell. He held that, even where failed applications had been brought validly in MFZ’s name, Mr Campbell was the “real” party as the applications had been made for his personal benefit. The judge said that Mr Campbell was “incapable of taking no for an answer” and granted a three-year ECRO.

The full judgment [2023] EWHC 2654 may be found on the National Archives website (external link).

Adams and ors v FS Capital Limited and ors (Edwin Johnson J)

Trusts; Jersey; Fiduciary duty; Improper purpose; Void transactions

The case concerned three Jersey-based tax avoidance schemes used by over 2,000 people. Under the schemes, the claimants were paid in the form of loans. They would then pay these loans back into trust funds of which they were the beneficiaries. When HMRC cracked down on this arrangement, the loan books were sold by the trustees of the three funds to the First Defendant for around £100,000 upfront with the potential for further payments of up to £1.2 million. The claimants challenged that sale, alleging that it was for an improper purpose.

The judge found that the sale had been for an improper purpose and was therefore void in equity. Each trust had negative cashflow, owing more in administration fees than they received in income. Rather than conducting a proper valuation of the loan book, the trustees sold it to the First Defendant at a value that would pay off the creditors but leave nothing for the beneficiaries, generating profits for the trustees and the buyer in the process. The trustees did have a duty to pay off the creditors but they had failed to take into account the interests of the beneficiaries.

The full judgment [2023] EWHC 1649 (Ch) may be found on the National Archives website (external link).