Our work
Members of XXIV Old Buildings practise in most areas of chancery and commercial work. We think that an essential part of the attraction to working in chambers is the huge variety of cases that our members work on, and clients that our members work for.
Our work therefore encompasses – both in England and Wales and overseas – contract and business disputes, civil fraud and asset tracing, company law, insolvency, banking and financial services, arbitration, aviation, trusts, probate and estates, art law, Court of Protection work, and professional negligence.
Every case is different, and many cases raise issues which span several of the above areas of work.
To give you a flavour of some of the cases we have worked on in recent years, several of our members have written the following case summaries.
Steven Thompson KC | Ciban Management Corporation v Citco (BVI) Ltd [2020] UKPC 31
In June 2020, as we were all still getting used to doing remote hearings, my Privy Council appeal in Ciban v Citco came on for hearing. I had previously been instructed to appear at the trial in the BVI in 2012. At trial the judge had found for my client, a professional services company in the BVI which had been sued for following the instructions of a friend, or maybe former friend, of the Brazilian ultimate owner of one of the hundreds of thousands of offshore companies incorporated in that tiny British territory. The Brazilian had claimed that my client had been negligent (in 2001) in failing to spot signs that his ‘friend’ was, as he said, defrauding him. The first instance judge, after hearing from the Brazilian himself, rejected his claim. So too did the Eastern Caribbean Court of Appeal when I appeared before them in 2018.
The Privy Council was his last throw of the dice – now more than 20 years after the events in question. The core legal issue was whether the Courts can apply the principle in Re Duomatic to the doctrine of ostensible authority. In particular, as all the shareholders of a company can collectively, usually at least, do things which bind the company, are the requests of an ostensible agent of a sole shareholder binding instructions of that company? If so, my client would be entitled to rely on the direction of this agent, even if he were actually a fraudster.
As these issues were grounded in company law, I had assumed Lady Arden would take the lead and her Ladyship was certainly keen to quiz me. But in the event the advice of the Board was delivered by Lord Burrows, in his first judgment at that level. Her Majesty was humbly advised to dismiss the appeal. The end of an 8 year run for me, and 20 years for my client.
Heather Murphy | Pakistan International Airlines Corp v Times Travel (UK) Ltd [2021] UKSC 40
One of the exciting aspects of practice is the unexpected turns it can take. I assisted with an aviation injunction in 2017 – one of my core areas of practice at XXIV Old Buildings – and it led to hearings in the Court of Appeal and the Supreme Court on the scope of lawful act economic duress. The case, Times Travel v PIAC, was a claim by two travel agents for commission which had not been paid by the airline, Pakistan International Airlines. Part of the dispute involved new terms of trading that one travel agent had signed in 2012. PIAC had offered these new terms of trading on a take it or leave it basis. The terms were that if Times Travel wanted to continue to be a travel agent for PIAC, Times Travel had to waive the outstanding commission due to them (some £1.2million). At the time, Times Travel had no alternative business other than selling PIAC’s tickets: they were over a barrel and had to sign.
The question for the Court (from first instance to the Supreme Court) was: when it is inappropriate for one party to obtain an outcome (a demand) by use of a threat to do something lawful? The law does not permit parties to make unlawful threats (e.g. at gunpoint), but should a threat to do something lawful (such as deciding to terminate a contract in compliance with the terms of the contract) ever be an inappropriate way to obtain an outcome?
The issue had never been considered by the Supreme Court and there are very few first instances cases on the point. This meant that we had to draw on almost 100 years of academic articles from England & Wales, United States, Canada, South Africa, Australia, New Zealand, Singapore and Hong Kong as well as the relevant cases from these jurisdictions. Many of these jurisdictions had different approaches to the issue: e.g. many US states have an automatic contractual duty of good faith (contrast, English law does not) which might impact on whether lawful threats are appropriate; in Canada the focus is on the impact on the victim rather than whether the threat is lawful or unlawful; and some Australian states say that lawful threats can never amount to economic duress! Constructing a legal argument as to what direction the law should take, and why our client should win from all of these sources and viewpoints was challenging, but incredibly rewarding – and exactly the sort of case I came to XXIV Old Buildings to work on.
Adam Cloherty KC | Goodrich v AB [2022] EWHC 81 (Ch)
Goodrich v AB, an interesting recent case that I was involved in, was satisfying both intellectually and on a human level. It concerned the Walker Books group – the well-known publisher of children’s books such as Where’s Wally?. The majority of the group was owned for the benefit of the company’s employees and their families under an “employee benefit trust” set up in 1991. Once the group had been sold, the trustees wished to distribute the proceeds to the beneficiaries. But first a number of issues arose about the meaning of certain terms that defined who the “beneficiaries” are – terms such as the “spouses” and “children” of employees. Social attitudes have changed greatly since the common law first defined those terms, as well as in the 30 or so years since the Trust was established. For example, the default common law meaning of “spouse” is of a marriage between two people of the opposite sex. That definition changed when the same sex marriage legislation came into force in 2014, although that legislative change only applied to future transactions (and therefore not to the Trust); and, even after the civil partnerships legislation created a separate institution (now available to both same sex and opposite sex couples) granting the equivalent of marital rights and obligations to civil partners, the concept of “spouse” still does not generally extend to civil partners.
However, in the Goodrich case I successfully argued (among other things) that in this Trust the term “spouse” should extend both to couples in a same sex marriage and also to couples in a civil partnership. I advanced the argument on two bases, with which the judge agreed. First, interpreting the Trust document in its wider context, especially as a long term structure for future employees, meant that it could be taken to have been intended to change with the times. Second, in any event, under its duty to give effect to Convention rights enshrined in the Human Rights Act, the court could and should alter the previous common law default definition of “spouse” to include same-sex marriages and civil partnerships: the existing rule was blatantly discriminatory and an unjustified interference with rights to private and family life. This second point was particularly rewarding, as it involved engaging directly with policy, and dissecting considerable amounts of ECHR and other jurisprudence, to fashion the right approach for private law to take in the context of the ‘modern’ family.