Elspeth Talbot Rice QC has a broad commercial Chancery practice and an extremely loyal client base. Clients comment especially on her meticulous eye for detail, particularly well-used in cross examination, her clear and robust advocacy in Court and her practical approachable style outside court. She is highly sought after for her incisive legal analysis, the depth of her experience, her ability to present complicated law and facts in a simple and clear way, the energy and zest she brings to the cases with which she deals, her strong court presence and her superb advocacy.

She is recommended in the major legal directories including Legal 500 and Chambers & Partners, her entries over the years having  described her as a a formidable litigator”, an “incredibly smooth and extremely pleasant advocate” with “a voracious work appetite” and “a very commercial approach“. She is praised as a very tenacious advocate; forthright in her advice and very easy to work with”, “superb on complex matters and very good with clients”, “mightily impressive and very composed” and “incredibly incisive and good at drilling down through all the facts: she can unpick a case in an instant”.

She has strength and depth right across the spectrum of commercial chancery matters: her expertise and experience straddles large scale trust and probate litigation, both domestically and internationally, and business based litigation and arbitration including fraud, company, partnership, insolvency and contractual disputes.

Many of her cases have overseas and international elements. She has been called to the Bar of the Eastern Caribbean, and has appeared in the British Virgin Islands on a number of occasions. She has also been licensed to appear, and has appeared a number of times, as an advocate in the Courts of the Isle of Man, Gibraltar, Bermuda and the Cayman Islands.  Additionally she has advised on many cases being fought in Guernsey, Jersey, the USA, the Bahamas, other islands of the Caribbean, Singapore and Hong Kong.

Reported cases include:

  • Gorbunova v Berezovsky’s Estate [2016] EWHC 1829 (Ch) – strike out of proprietary claims to assets held by trustees in bankruptcy of an insolvent estate
  • Butler v Butler [2016] 4 W.L.R. 133 – division of chattels between tenants in common under s.188 Law of Property Act 1925
  • Trustee L v AG [2016] SC (Bda) 50 Com – costs of a contested Beddoe application
  • Coward v Phaestos Ltd
    • [2013] EWHC 1292 (Ch) – ownership of intellectual property in a software for a Cayman hedge fund
    • [2015] C.P. Rep. 2; [2014] 6 Costs L.O. 843 –appeal against the costs order made at trial – whether the result at trial was more advantageous than a Calderbank offer
  • Drake v Harvey [2012] 1 All E.R. (Comm) 617; [2012] 1 B.C.L.C. 724; [2011] W.T.L.R. 1557; [2012] Bus. L.R. D44 – value payable to a deceased partner in respect of his share of a farming partnership
  • Gill v Woodall & RSPCA [2011] Ch. 380 – whether a will was invalid due to undue influence, lack of capacity or want of knowledge and approval
  • Fattal v Walbrook Trustees (Jersey) Ltd
    • [2012] Bus. L.R. D7 – disallowance of re-amendments after expiry of limitation period
    • [2011] 1 All E.R. (Comm) 647 – powers and duties of trustees holding membership rights in company limited by guarantee
  • Harms Offshore AHT Taurus GmbH & Co KG v Bloom [2010] Ch. 187 – anti-suit injunction by administrators of company in respect of proceedings in New York
  • In the matter of Bertrand Theodoor Ciebrant, deceased, Van Kwawagen v RNLI & Cancer Research UK [2009] WTLR 69 – proof of a contested, reconstituted will

Elspeth is a much sought after speaker at conferences both in England and abroad, and she sits on many conference advisory boards. She speaks regularly at Legal Week’s Trusts and Estates Litigation Forum in Provence and their International Private Client Forum at Lake Como.  She chairs the International Litigation Day at the Transcontinental Trust conference in Geneva and speaks at the Transcontinental Trust conference in Bermuda.  She has also spoken at White Paper’s Fraud conferences and many STEP and Law Society conferences.

Elspeth regularly provides workshops and seminars, podcasts and webinars on a variety of subjects, details of which can be obtained from the practice management team (clerks@xxiv.co.uk).  For example, Elspeth and Adam Cloherty produced a podcast available at cpdcast.com (subscription may be required) on Trustees and Mistake and the decision of the Supreme Court in Pitt v Holt . Elspeth and Andrew Holden produced a podcast on Bust Trusts which examines aspects arising when the law of bankruptcy and insolvency clashes with the law of trusts and Elspeth and Edward Cumming produced a podcast on Anti-Suit Injunctions in Insolvency Proceedings.  Elspeth’s webinars include a STEP webinar on Bust Trusts (November 2014), a Lexis Nexis webinar on “Mad, Bad and Dangerous to Know” (September 2011) and an LNTV presentation on Insolvent Estates.

Elspeth’s publications include:

  • “A trustee by any other name – who is a “trustee” for limitation purposes?” (with Andrew Holden) Journal of International Business and Finance Law (2014) 29 JIBFL 438
  • “Whose liability is it anyway?” (with Daniel Warents) Journal of Business and International Law (2012) (dealing with whether trustees of personal pension schemes can be liable in respect of undisclosed commissions paid to investment managers or advisors, and if so in what circumstances)
  • “He’s Madoff with my Money” (with Bajul Shah) Trust and Trustees (Oxford University Press) (2010) 16 (4): 213-225 (an article examining hedge fund structures, Madoff’s fraud and the resultant clawback claims)
  • “Oops, I’ve made a mistake: Will England or Jersey law fix it for me?” the Lawyer website, December 2012
  • “Core Distinction” Legal Week, 30th March 2010 – an examination of the rule in Re Hastings Bass and mistake
  • Insolvency Issues for Estates and Trust Practitioners (with Edward Cumming and Sarah Bayliss) Insolvency Intelligence Insolv. Int. (2010) Vol.23 No.3 Pages 33-37 and No.4 Pages 49-53

 

Areas of experience

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  • Arbitration

    Elspeth has considerable arbitration experience in a variety of subject areas including:

    • arbitration in which a franchisee made a successful claim against the franchisor for damages for wrongful repudiation of a franchise agreement.
    • arbitration arising out a contract for the supply of oil.

    She has also been involved in cases in which allegations of negligence have arisen as a result of the conduct of the arbitration.

  • Banking and Financial Services

    Elspeth Talbot Rice QC has dealt with various cases arising out of the financial services sector.

    Notable cases include:

    • Deroo & Ors v Taitnys Management Ltd & Ors [2010]: claims, including against financial intermediaries, arising out of the use of a Jersey trust as an investment vehicle.
    • Trident Trust Company (UK) Limited v AACU [2008]: included claims against IFAs for breach of duty and pursuant to the FSA.
    • FSA v Gladwish [2002]: a claim by the FSA that a business involving the purchase and sale of plots of land was a collective investment scheme.
    • Russell Cooke Trust Co Ltd v Elliott & 92 others [2001] All ER (D) 300; [2001] LTL 16/5/2001: proceedings to determine whether an investment scheme operated by a solicitor and frozen by the Law Society was a number of separate collective investment schemes or one big collective investment scheme.
    • In the matter of Griffin Trading Co Ltd [1999] All ER (D) 1075; [1999] LTL 21/10/1999, Arden J: whether a claim could be made to the client account of a derivatives trading enterprise in liquidation.

    Elspeth Talbot Rice QC has also written an article with Daniel Warents explaining how trustees of personal pension trusts may be exposed to liability in respect of investments made by beneficiary-appointed investment managers, who receive commissions which they do not disclose to the beneficiary.

  • Civil Fraud, Asset Tracing & Recovery

    Elspeth Talbot Rice QC has been involved in many fraud and tracing actions, particularly with international elements. She is recommended in Legal 500 in this area, it being said of her that “for complex fraud matters [she] is hard to beat“.

    Notable cases include:

    • Trident Trust Company (UK) Limited v AACU [2008]: claims on behalf of a trustee, including in the USA, to track down and recover funds which had been transferred out of the trust and had bounced in and out of various jurisdictions before they were found in, and recovered from, the USA.
    • Centum Investments v Bannon & Ors [2009]: a claim on behalf of a shareholder that a transfer of the company’s business made by administrators of a pre-pack administration to the other shareholders was in breach of a shareholders agreement.
    • Glen Marks Corporation Ltd v Black Raven [2008]: a claim on behalf of a shareholders to set aside a substantial share allotment on the basis that it had been made for an improper purpose to defeat a majority vote.
    • Diva Sports Ltd v Carnegie Group Ltd & Murray International Holdings Ltd [2007]: substantial breach of warranty claim arising out of the accuracy of the accounts of a 5 aside football business.
    • Cable v Wireless v Valentin & ors [2004]: multi million pound proceedings for the disgorgement of secret profits.
    • Walsh v Deloitte v Touche [2001] UKPC 58, LTL 18/12/2001, PC: whether the courts of the Bahamas had jurisdiction to grant a worldwide Mareva in aid of proceedings in Canada and the USA in which the claimants claimed damages from the director of the Canadian gold mining company, Bre-X Mining, essentially for insider dealing
  • Commercial Litigation

    Elspeth Talbot Rice QC has significant experience in inter and intra corporate disputes, security arrangements, breach of warranty, financial services, civil fraud, asset recovery and restitution cases and hedge fund litigation.

    Chambers & Partners has consistently recommended her in Commercial Dispute Resolution, with market commentators having endorsed her in the past for the breadth of her practice, noting “there is little she doesn’t have experience of” and currently describing her as “a fantastic all-rounder“.

    Legal 500 also recommends Elspeth in Commercial Litigation and Civil Fraud, describing her as ” always one step ahead of the game, all over the detail, as well as the bigger picture. She is formidable in court but very approachable outside it” and “who, for complex offshore fraud matters is hard to beat“.

    Key cases include:

    • Chapman v Wilson, Pitts and LawFinance [2010] EWHC 1746 (Ch), Vos J, a claim challenging the validity of security taken over a solicitor’s files under the Bills of Sales Acts.
    • Bloom & Ors v Harms Offshore AHT “Taurus” GmbH &Co KG & another [2010] Ch 187 (CA): an expedited appeal on the question of the Court’s jurisdiction to grant an anti-suit injunction to prevent a German creditor from proceeding with an action in New York.
    • Slocom Trading Ltd v Tatik & Sibir Energy [2010]: claims arising out of the validity and effect of various loan and security arrangements.
    • SV Special Solutions Ltd v Headstart Class F Holdings Ltd [2008]: a case fought in the BVI concerning the nature and extent of the rights of a redeeming shareholder against an illiquid hedge fund.
    • Scheps v Fine Arts Logistics Ltd [2007] EWHC 541 (QB); [2007] All ER (D) 290: a successful claim against a specialist fine arts storage company for the loss of a unique Anish Kapoor sculpture.
    • Kololi Travel Ltd [2007]: claims in the Isle of Man arising out of a timeshare resort in the Gambia.
    • Diva Sports Ltd v Carnegie Group Ltd & Murray International Holdings Ltd [2007]: substantial breach of warranty claim arising out of the accuracy of the accounts of a 5 aside football business.
    • Geosurvey Holdings Ltd v BSI Overseas Ltd [2007] UKPC; LTL 25/4/2007: appeal to the Privy Council from the Bahamas on grounds of breach of the rules of natural justice and denial of a fair trial, the judge having determined a point (against the appellant) which was not in issue between the parties represented at the hearing.
    • Diedrichs Shurland v Talanga Stiftung [2006] UKPC 58; LTL 7/12/2006: appeal to the Privy Council from the Bahamas for a re-trial on the ground that the judge at first instance had been, or had appeared to be biased and the appellant had been denied a fair trial, the respondent having made a private plea, by letter, to the judge at first instance after the conclusion of the trial and before the judge had delivered judgment.
    • FG Hemisphere Associates LLC v Republic of Congo (Times 27 February 2006): priorities of judgment creditors in relation to third party debt orders.
    • Tsentas v Tsentas [2005]: a dispute between family members in connection with their worldwide business activities.
    • T&N v Royal Sun Alliance [2004] Ll Rep IR 104; [2003] 2 All ER Comm 939: a multimillion pound dispute between the administrators of T&N, a large manufacturer and user of asbestos, and its former employer liability insurers regarding the avoidance of, and the extent of coverage of, the employer’s liability policies with regard to asbestos related diseases.
    • Euroafrica v Zegluga Polska [2004] 2 BCLC 97: a dispute between two Polish companies arising out of their shareholding in a Manx company, the owner of a ferry operating in the Baltic. A point arose in the litigation as to whether a solicitor under a general retainer had the necessary authority to do all that was necessary to bring a piece of litigation to a conclusion.
    • Myp Des v Artola [2001-2003] MLR N 24: a claim in the Isle of Man by a Spanish company against a Manx unincorporated association for unpaid management fees in relation to a timeshare in Tenerife
  • Company

    Elspeth Talbot Rice QC has conducted a number of company disputes, including shareholders disputes, disputes involving unlawfully paid dividends and breaches of directors’ duties. She has also conducted many auditors’ and accountants’ negligence cases because of her knowledge of company accounts.

    Notable company cases include:

    • A claim in the Isle of Man by an AIM listed company set up to invest in Balkan property against directors and investment managers for breach of fiduciary duty, breach of contract, misrepresentation, conspiracy. [2013]
    • Louis Group [2012/2013]: public policy petitions against a number of companies connected to a Manx fund set up to invest in property, in which the directors’ conduct of the companies was impugned by the financial services regulator.
    • Acted for administrators of a car dealership company in claims against directors for breach of fiduciary duties. [2012/2013]
    • Acted for directors of a Manx fund whom the financial services regulator alleged had acted in breach of the financial services regulations. [2012]
    • E&E Transport Ltd [2011/2012]: unfair prejudice petition by one director/shareholder against the other director/shareholder with complaints being made that the latter had mismanaged the company.
    • Souter v Raymond Saul [2011/2012]: a claim against a solicitor for releasing funds held in escrow to a third party to whom they were intended to be released, where that third party did not use them for the purpose for which he was meant to use them.
    • BTU Power [2011/2012]: acted for an investor in a Cayman hedge fund in connection with claims of mismanagement against the manager of the fund.
    • Centum Investments v Bannon & Ors [2009]: a claim on behalf of a shareholder that a transfer of the company’s business made by administrators of a pre-pack administration to the other shareholders was in breach of a shareholders agreement.
    • Glen Marks Corporation Ltd v Black Raven [2008]: a claim on behalf of a shareholders to set aside a substantial share allotment on the basis that it had been made for an improper purpose to defeat a majority vote.
    • Diva Sports Ltd v Carnegie Group Ltd & Murray International Holdings Ltd [2007]: substantial breach of warranty claim arising out of the accuracy of the accounts of a 5 aside football business.
    • Hale v Waldock [2007] 1 BCLC 520, [2006] EWHC 364 (Ch), LTL 13/3/06: s.459 petition in which it was alleged that a legitimate expectation to receive monthly payments on account of profits was breached.
    • Cable v Wireless v Valentin & ors [2004]: multi million pound proceedings for the disgorgement of secret profits.
    • Cavish v Alty [2004] All ER (D) 157; [2004] EWHC 2892 QB: accountants’ negligence action relating to the failure to uncover fraudulent conduct of an employee; whether the claim was statute barred.
    • In re Ravenhart Service Holdings Ltd, Reiner v Gershinson [2004] 2 BCLC 376; [2004] EWHC 76 (Ch): a s.459 petition in relation to a group of London property owning companies in which an injunction was granted restraining the executive directors from paying themselves remuneration.
    • Joel v Langley [2002] All ER (D) 191; [2002] EWCA Civ 523, CA: accountant’s negligence in relation to loss of retirement relief on the capital gain on the sale of shares in a company.
    • Crowe v Hearn [2000] All ER (D) 1119: a s.459 petition in which the respondent was ordered to purchase the petitioner’s shares for a substantial sum notwithstanding the fact that the company was in insolvent liquidation.
    • Arab Bank v Mercantile [1994] Ch 71: financial assistance by a foreign subsidiary given to its holding company for the purchase of the holding company’s shares did not contravene s.151 Companies Act 1985.
  • Hedge Funds & Structured Investment Vehicles

    Elspeth Talbot Rice QC has advised on a number of pieces of litigation involving hedge funds.

    Notable cases include:

    • Deroo & Ors v Taitnys Management Ltd & Ors [2010]: claims arising out of the use of a Jersey trust as an investment vehicle, which invested in various funds.
    • SV Special Solutions Ltd v Headstart Class F Holdings Ltd [2008]: application to set aside a substantial statutory demand served by a redeeming shareholder in a multi-million dollar hedge fund.

    Her article (with Bajul Shah) “He’s Madoff with my Money!” was published in Trusts and Trustees, Vol.16, No.4, May 2010 pp.213-225.

  • Insolvency

    Elspeth Talbot Rice QC is well known in this area and has fought numerous cases arising out of insolvent and solvent liquidations, receiverships, administrations and bankruptcies. She is recommended in this area by Chambers & Partners 2011, it being noted in the past that “She doesn’t take bad points and judges listen to what she says“. Legal 500 2011 also recommends her.

    • Bloom & ors v Harms Offshore AHT “Taurus” GmbH & Co KG & another [2010] Ch 187, CA: the leading Court of Appeal judgment on the courts’ power to grant anti-suit injunctions in support of insolvency proceedings.
    • Centum Investments v Bannon & Ors [2009]: a claim that a transfer made by administrators of a pre-pack administration was in breach of a shareholders agreement.
    • SV Special Solutions Ltd v Headstart Class F Holdings Ltd [2008]: an application in the BVI to set aside a substantial statutory demand served by a redeeming shareholder in a multi million dollar hedge fund.
    • Confiance v Olgun Halil Shah [2008]: a strongly contested bankruptcy petition.
    • Re Vos deceased [2005] WTLR 1619: the leading case on the effect of the avoidance of payments out of an insolvent estate: fees had been paid to a solicitor for a number of years between the date of the deceased’s death and date on which the trustee in bankruptcy was appointed pursuant to the Insolvent Administration Order. The trustee in bankruptcy successfully claimed that such payments were void and that the Court should not ratify them.
    • Re Hans Frederick Johnson [2005]: asset collection in a multi million bankruptcy following a multi million pound judgment against the bankrupt (who lived in Switzerland) in the USA. The trustee in bankruptcy applied to suspend the bankrupt’s automatic discharge from bankruptcy.
    • Taxback Limited v Partou [2005]: a claim by a liquidator against a director of the company in liquidation that an employee benefit trust set up before the Company’s liquidation is a sham and for recovery of the funds paid into it.
    • Re Ocean Estates (Holdings) Limited [2004] All ER (D) 325: application to restrain advertisement of winding up petition.
    • Westbond International Bank Ltd v Flagdean & ors [2004]: liquidation of an Antiguan bank in England in which the liquidators took proceedings to claim an interest in a property in the City of London.
    • Re Redchoice Ltd [2004]: a claim by one out of two factions of shareholders against the liquidator in a members’ voluntary liquidation in connection with his conduct of the liquidation and his fees.
    • In the matter of Griffin Trading Co Ltd [1999] All ER (D) 1075; [1999] LTL 21/10/1999, Arden J: whether a claim could be made to the client account of a derivatives trading enterprise in liquidation.
    • Re Oasis Merchandising Services Ltd, Ward v Aitken & ors [1998] Ch 170; [1997] 1 All ER 1009; [1997] BCLC 689; Times 19 June 1995: wrongful trading claim; whether assignment of that claim by liquidator champertous.
    • Re Ouvaroff [1997] BPIR 712: whether the wife of a bankrupt could retain and not be required to deliver up to her husband’s trustee in bankruptcy privileged documents.
    • Foister v Jagg Ltd (in liquidation) v Richmond [1997] LTL 25/06/1997, CA: application to commit company receivers to prison for contempt by neglecting to comply with a mandatory order made against the company to deliver up books of account; Grepe v Loam order sought by the receivers and granted.

    Elspeth was recently involved with Edward Cumming in Bloom v Harms Offshore GmbH & Co KG [2010] 2 Ch 187 on which they have produced a Legal Update. Their article “How long is insolvency’s arm?” has been published in Insolvency Intelligence on 7th July 2010 and the Solicitors’ Journal in October 2010.

    Elspeth, Edward Cumming and Sarah Bayliss have also published an article “Handle with Care” in Private Client Practitioner on 1st March 2010.

    Her latest podcast with Edward Cumming is on the topic of “Anti-suit injunctions in insolvency proceedings” (Clicking on this link takes you to CPDCast’s website where you can access the podcast by setting up a (free) account).

  • International & offshore

    Elspeth Talbot Rice QC is called to the Bar of the Eastern Caribbean and has been involved in many cases in offshore jurisdictions and many more cases with international angles.

    In the Privy Council, on appeal from the Bahamas, Elspeth has been involved in the following cases:

    • Geosurvey Holdings Ltd v BSI Overseas Ltd [2007] UKPC; LTL 25/4/2007: appeal to the Privy Council from the Bahamas on grounds of breach of the rules of natural justice and denial of a fair trial, the judge having determined a point (against the appellant) which was not in issue between the parties represented at the hearing.
    • Kohlrautz v Diedrichs Shurland [2006] UKPC 58: whether there should be a re-trial on the ground that the judge at first instance had been, or had appeared to be biased and whether the appellant had been denied a fair trial, the respondent having made a private plea, by letter, to the judge at first instance after the conclusion of the trial and before the judge had delivered judgment. Questions of apparent bias, delay (between the hearing and the handing down of judgment) and quantum meruit (of trustees’ remuneration) arose.
    • Walsh v Deloitte v Touche [2001] UKPC 58, LTL 18/12/2001, PC: whether the courts of the Bahamas had jurisdiction to grant a worldwide Mareva in aid of proceedings in Canada and the USA in which the claimants claimed damages from the director of the Canadian gold mining company, Bre-X Mining, essentially for insider dealing

    In the Isle of Man, Elspeth has been involved in the following cases:

    • Kelliher and Horrobin v Clarkson [2006] – potential objects of a discretionary power of appointment seeking relief in relation to the trusts including trust information and documentation, the removal of the trustee, a declaration of the trustee’s breach of trust and a direction requiring the trustee to exercise its power of appointment by appointing the petitioners as additional beneficiaries of the trusts
    • Fairall v Stubbins a claim for an account in the estate of a deceased against an attorney who acted for the deceased before her death
    • Directors’ disqualification proceedings involving claims that the company’s assets had been misappropriated
    • Myp Des v Artola [2001-2003] MLR N 24: a claim by a Spanish company against a Manx unincorporated association for unpaid management fees in relation to a timeshare in Tenerife
    • Paz v Steele [1993-1995] MLR 102: a multi party, multi jurisdiction, multi million pound claim relating to a large Manx trust.

    In the British Virgin Islands, Elspeth has been involved in:

    • SV Special Solutions Ltd v Headstart Class F Holdings Ltd [2008]: application to set aside a substantial statutory demand served by a redeeming shareholder in a multi-million dollar hedge fund
    • Tsentas v Tsentas [2005] dispute between family members in connection with their worldwide business activities

    In the Bahamas, Elspeth has been involved in:

    • Rey v Government of Switzerland [1999] 1 AC 54 PC: extradition of a Swiss national from the Bahamas on charges of corporate fraud and bankruptcy offences

    In Guernsey Elspeth has been involved in:

    • Henniger v Robinson [2005] a claim that the testator/lessor did not have sufficient capacity to execute a will and a lease, that he did not know and approve of the will and that the lease is also invalid on other grounds
    • A claim in negligence against a firm of advocates arising out of the conduct of a large trust dispute [2007]
    • Advising trustees in relation to a large trust with international assets

    In Jersey, Elspeth assisted in proceedings brought in Jersey ancillary to London proceedings in the liquidation of Westbond International Bank Limited, an Antiguan bank being liquidated in England where assets were situated in, amongst other jurisdictions, Jersey.

    In Hong Kong, Elspeth has advised partners in relation to their partnership affairs.

    In Bermuda Elspeth has been involved advising in connection with two large scale trust disputes, one concerning the appointment of trustees and protectors and the other concerning the corporate structure of a large multi-national and well-known business.

  • Partnership and Joint Ventures

    Elspeth Talbot Rice QC has advised on many partnership agreements and disputes including in relation to the construction of a automatic accruer clause, the ambit and enforceability of restrictive covenants, partners’ duties of good faith to each other and the proper winding up of partnerships’ affairs.

    Chambers & Partners and Legal 500 have recommended her for Partnership for many years, having described her in the past as a “tough operator” and noting that clients endorse her “pragmatic and responsive” approach and referring to her as “the first point of contact in partnership matters“, as “extremely efficient and user friendly“, “able to grasp difficult concepts quickly, translate pure legal advice into language that clients can easily understand” and a “delight to deal with” with a “very clear vision of the optimum way to handle a technical argument“, as “frequently mentioned by solicitors as favoured counsel” and “an extremely forceful and accomplished advocate.” Legal 500 2010 notes that she is “‘an absolute favourite’ with many solicitors” whilst Chambers & Partners 2010 describe her in this area as “One of the most efficient barristers .. another great cross examiner who has a ‘meticulous eye for detail’. ‘Robust and tenacious in court, she is ‘mustard at both commercial and trust-related matters’“.

    Partnership cases tend to be sensitive and not aired in open court, but a recent notable partnership case which was aired in open court is:

    • Drake v Harvey [2010] EWHC 1446 (Ch), Mann J: the construction of a clause in a partnership deed which provided for a dying partner’s share automatically to accrue to the surviving partners subject to them paying for such share by reference to the last annual accounts, the question being whether those last annual accounts should reflect a fair value of the partnership’s assets or only their book value.
  • Professional Negligence

    Elspeth has experience in liability claims against professionals, particularly accountants and lawyers.

    Recent cases include:

    • Aviss v Pridie Brewster: accountants’ negligence action relating to an alleged failure to advise on a substantial element of non-recurring income in a target company’s turnover.
    • Moore v McEvoy: a claim against a barrister for an alleged negligent failure to advise in connection with an arbitration arising out of the dissolution of a partnership of surveyors.
    • Rich & Allan v Numerica: accountants’ negligence action relating to an alleged negligent valuation of shares in a private company.
    • CF Parkinson -v- Dawes & Co: Professional negligence claim against auditors for failure to identify fraud.
    • Advising in respect of potential claim against Guernsey advocates arising out of their conduct of trust litigation.
    • Cavish v Alty [2004] All ER (D) 157; [2004] EWHC 2892 QB: accountants’ negligence action relating to the failure to uncover fraudulent conduct of an employee; whether the claim was statute barred.
    • Joel v Langley [2002] All ER (D) 80 & 191; [2002] EWCA Civ 523, CA: accountant’s negligence in relation to loss of retirement relief on the capital gain on the sale of shares in a company.
  • Real Estate Litigation

    Elspeth Talbot Rice QC frequently deals with property related disputes, proprietary claims to property, questions relating to the beneficial interest in property, claims arising out of mortgages and charges, their assignment, priority and subrogation, boundary disputes, contentious conveyancing problems and the appointment and duties and powers of LPA Receivers.

    Recent cases include:

    • Walbrook v Fattal [2010] EWCA Civ 408, [2009] EWCA Civ 297, [2008] All ER (D) 109; Fattal v Walbrook [2008] All ER (D) 72: long running litigation concerning a claim by one of four trusts to be entitled to exercise a right of pre-emption in relation to another of the trust’s interest in companies owning a substantial London property.
    • Gill v RSPCA [2009] EWHC 834 (Ch): a claim in proprietary estoppel to a Yorkshire farm.
    • Gurtata v Gurtata [2008]: a constructive trust claim by a mother to a beneficial interest in her son’s house.
    • Quinn v Tomlinson [2006]: claim to a half share of a property on the basis of express trust, constructive trust, resulting trust or to repayment of money used to repay a building society mortgage by way of subrogation.
    • Henniger v Robinson [2005]: a claim in Guernsey that the lessor did not have sufficient capacity to execute a lease and that the lease is also invalid on other grounds.
    • Westbond International Bank v Flagdean & ors [2004]: a claim by an Antiguan bank in liquidation to a proprietary interest in a commercial property in the City of London.
    • Barclays Bank v Caplan [1998] 1 FLR 532 Ch, Times 12 December 1997: mortgage possession proceedings in which the wife contended that the mortgage was procured by undue influence of which the bank had constructive notice.
  • Trusts, Probate & Estates

    Elspeth Talbot Rice QC is well known and very highly regarded in this field, both Chambers & Partners and Legal 500 recommending her as a leading silk. In the past, Chambers & Partners have noted the remark of a peer “You know she will fight every point and fight it well” and described her as “a fantastic litigator“, “the toast of clients” with her being “commercial, forthright and knowledgeable“. Chambers & Partners 2010 report that her “career is being watched by the market with interest. The common consensus is that this ‘excellent litigator’ and ‘feisty courtroom performer’ is on her way to the top of the profession”. Legal 500 2010 describe her as being “enormously talented, very bright and formidable in court“.

    Recent and notable cases in this field include:

    • On-going matter – 2011 – Family disputes over the management of the companies in a large group of trading companies, bringing into question what the Bermudan trustees who own the shares of the ultimate holding companies should do in order to try and resolve such disputes. June hearing in Bermuda postponed to November
    • On-going matter 2011 – litigation in Gibraltar relating to a dispute over control of a Gibraltar company owned by trusts and nominees
    • On-going matter 2011 Instructed in a dispute concerning the duties of Jersey trustees in relation to investing in speculative trading businesses and liability for losses
    • Instructed in a dispute concerning the liability of Guernsey based trustees and/or non-South African based assets to a South African judgment for taxes, interest and penalties against a BVI company owned by the trust.
    • Bermuda trust dispute – ongoing 2011 – This dispute has opened up 20 – 30 years of tax restructurings and decisions.
    • Walbrook v Fattal [2010] EWCA Civ 408: directions to two trustees of a trust of the membership rights in a company limited by guarantee, held on trust four beneficiaries to procure the increase in the membership of the company so that there was one member for each beneficiary.
    • Neville v Astor [2009]: application for letters of administration with the will annexed to be granted to a third party against the wishes of the executor.
    • Gill v RSPCA [2009] EWHC 834: a high profile claim by an only child that her mother did not know and approve of her will in which she left her estate to the RSPCA and was unduly influenced into making it and an alternative proprietary estoppel claim.
    • Trident Trust Company (UK) Limited v AACU [2008]: claims on behalf of a trustee, including in the USA, arising out of the non-return of invested trust funds.
    • Fattal v Walbrook [2009] EWHC Civ 297, [2008] All ER (D) 72; Walbrook v Fattal [2008] All ER (D) 109: a claim by one of four trusts to be entitled to exercise a right of pre-emption in relation to another of the trust’s interest in companies owning a substantial London property; also a claim by the trustees for directions as to the sale of the property.
    • In the matter of Ciebrant: Van Kwagagen v RNLI & Cancer Research UK [2008] All ER (D) 76; [2008] EWHC 2246 (Ch):a successful, contested claim to prove a reconstituted will.
    • Kelliher and Horrobin v Clarkson [2006]: potential objects of a discretionary power of appointment seeking relief in relation to the trusts including trust information and documentation, the removal of the trustee, a declaration of the trustee’s breach of trust and a direction requiring the trustee to exercise its power of appointment by appointing the petitioners as additional beneficiaries of the trusts.
    • Newall v North-Lewis & ors [2005]: a claim to remove and substitute trustees coupled with injunctive proceedings to restrain the current trustees from appointing new trustees and from exercising their dispositive powers.
    • Vos deceased [2005] WTLR 1619: a claim by a trustee in bankruptcy of an insolvent estate that payments made between the date of death and the date of the trustee’s appointment were void and that the Court should not ratify such payments.
    • Sherrington v Sherrington [2005] WTLR 587, Times March 24 2005 CA: whether a will was invalid because the witnesses to it did not intend to attest the testator’s signature to it and/or because the propounder of the will could not prove that the deceased knew and approved of its contents.
    • Hoff v Atherton [2005] WTLR 99, CA: whether a will was invalid because the propounder of the will could not prove that the testator had testamentary capacity at the time of execution (there being doubt over her capacity) and/or that she knew and approved of its contents.
    • Chappel v Somers & Blake [2004] Ch 19: a professional negligence action against solicitors for loss caused to residuary beneficiaries by delay in the administration of an estate.
    • Bell v Georgiou [2002] All ER (D) 433; [2002] EWHC 1080 (Ch), LTL 11/06/2002: a claim for rectification of a will.
    • Cameron deceased [1999] Ch 386: whether a legacy was adeemed by a lifetime gift made by the deceased’s attorneys (before her death) for the benefit of the legatee’s son with the intention that it be brought into account on the deceased’s death.
    • Paz v Steele [1993-1995] MLR 102: a multi party, multi jurisdiction, multi million pound claim litigated in the Isle of Man relating to a large Manx trust.

     

    Elspeth and Adam Cloherty’s article “Core Distinction” examining the rule in Re Hastings Bass and mistake was published in Legal Week on 30th March 2010 can be downloaded at the link. Elspeth and Adam Cloherty have also produced a podcast available at www.cpdcast.com which sets out what was the rule in Re Hastings Bass and what the decision of the Court of Appeal in Pitt v Holt has done to correct what many perceived to be an anomaly in the law. It also discusses the implications of the decision on the law of mistake and what it means for private clients and their advisors. She has also done a Cpdcast podcast on “Ancillary Relief in Offshore Jurisdictions” which examines the jurisdictions in which free standing freezing injunctions can and cannot be obtained. (Cpdcast.com provide the first podcast free. Thereafter you (or your firm) needs to be a subscriber). Also available is a video by Elspeth dealing with insolvent estates: how personal representatives for estates which turn out to be insolvent should administer them and the pitfalls to look out for and avoid.

    In addition, Elspeth is the author of many articles in this area. For example, she wrote an article with Daniel Warents explaining how trustees of personal pension trusts may be exposed to liability in respect of investments made by beneficiary-appointed investment managers, who receive commissions which they do not disclose to the beneficiary.

    Elspeth together with Robert Avis and Timothy Sherwin presented a paper on the variation of trusts at the 2016 XXIV Old Buildings Geneva conference, the proposals in which have been adopted by the States of Jersey which is putting forward amendments to the Trusts (Jersey) Law 1984 to reflect them.