My latest guest blog comes from Executive Chairman at Pengaron Mediation Services Ltd, Dave Owen. Dave is well known to most in the mediation community, and in this blog he outlines several cases that reached court where mediation would surely have been a preferable way of resolving the dispute. All cases described by Dave have been reported in the national press.
Oasis Or Mirage
Liam Gallagher (of Oasis) and pop star Nicole Appleton divorced in a £10.8 million battle.
They were unable to reach a settlement between themselves, so that matter was decided by a judge.
The judge, Martin O'Dwyer, ordered that they split their fortune equally but lambasted the pair, stating that "The level of costs on this case, totalling over £800,000, are manifestly which involves capital sums not much greater than £10 million".
An “eventing” horse was advertised for sale at £20,000 and certain of its qualities were mentioned in the advert. The horse had been ridden by the owner’s teenage daughter.
A potential purchaser saw the advert and contacted the seller and they arranged to meet at an event where she could inspect the horse and her daughter (aged 13 or 14) could try riding the horse.
The prospective purchaser’s daughter rode the horse and a price of £18,000 was agreed and paid in cash.
About 3 weeks later, the purchaser contacted the seller to say that the horse was not suitable for an early teenaged rider and asked that the seller took the horse back and reimbursed the £18,000.
The seller refused, stating that there was nothing wrong with the horse and that the purchaser’s daughter was happy with it having had a test ride.
The dispute eventually reached court and the judge found in favour of the seller, making the point that the horse continued to be a successful eventer and awarded costs against the purchaser.
The total costs that the purchaser had to bear were about £240,000 (more than 13 times the amount in dispute). In addition, the seller requested a charge be placed on the home of the purchaser, which was granted so the seller could force the sale of the purchaser’s home, if the seller did not pay the seller’s costs.
I Just Want My Job Back
Professor Nadey Hakim (Prof. Hakim) had worked for Imperial College Healthcare NHS Trust (Imperial) for a number of years. Prof. Hakim had performed London’s first pancreas transplant 20 years previously and raised £3.5 million in research grants for Imperial.
In September 2014, Prof. Hakim was suspended after a fellow surgeon reported him for the way that Prof. Hakim had arranged a private operation and an NHS operation to take place simultaneously in October 2013. The criticism was that Prof. Hakim had given priority to the private patient for some of the time, to the detriment of the NHS patient, relying on more junior staff to carry out some of the procedures on the NHS patient. The surgery on both patients was successful.
Following the suspension, Imperial dismissed Prof. Hakim - he had not been able to work for the NHS for over a year, and also had his “admitting rights” to treat patients at 7 private hospitals withdrawn.
The dispute eventually resulted in a week-long tribunal in front of employment judge Sarah Goodman. Judge Goodman found in favour of Prof. Hakim - in her judgement, she stated that “It sometimes happens that clinicians make errors of judgement. If all clinicians were dismissed for an error of judgement, then hospitals would be depleted of their staff.”
After the judgement, Prof. Hakim stated that “It’s unbelievable. The judge cleared me on every single point. She said they [Imperial] didn’t investigate properly…. I did the best for all my patients and I was the top surgeon in the country. I could not have expected a better outcome. My name has been cleared.”
Prof. Hakim wishes to be reinstated by Imperial but Imperial does not want to do so. Prof. Hakim will have to await a further tribunal hearing, to see whether the judge orders Imperial to reinstate him.
A spokeswoman for Imperial said “We are disappointed by the judge’s ruling and we are considering our position”.
As yet, there is no indication of what the total legal costs of the dispute are going to be, let alone the operations that have been postponed or not been carried out.
Formula 1 “Divorce” (overtaken to Court of Appeal)
Jason Patrick (Jason) and Daphne McKinley (Daphne) are at loggerheads over her reported £10 million fortune.
Jason is suing Daphne for allegedly breaking promises in relating to profits from property.
The domestic arrangement between Daphne and Jason were complicated and highly contested.
Daphne has described them as an “on-off boyfriend/girlfriend relationship” for 5 years but insisted he was “a kept man or jobbing worker” and a “fantasist” who “made up his claim to try and get some money from her” and that from the start it was made clear that “theirs was a relationship of employer-employee who became good friends and companions – with the occasional intimacy or sex”.
Jason’s version of events was very different. He described their relationship as living together as “man and wife” and that they planned to marry. He said that theirs had been a “whirlwind romance” and that Daphne was the first to raise the prospect of marriage “proposing to him on several occasions”.
He claimed that he had played a key role in creating her lucrative property portfolio, and he lodged a claim for damages for £3.5 million, which he said was the increase in value of 3 houses, the refurbishment of which he had overseen.
At first instance, Judge Nigel Gerald found in favour of Daphne and said there was no “credible evidence he [Jason] has done any work for which he has not been paid.” and rejected claims that they ever planned to wed or set up home together.
However, at the Court of Appeal, Jason’s barrister (Gillon Cameron) insisted there had been a “strong and loving relationship”, citing Valentine’s Day cards, texts and evidence of Daphne referring to Jason as her “partner”.
Granting permission to appeal, Lord Justice Kitchin said “I have come to the conclusion that it is arguable that the judge failed to properly consider this material”.
A date for the appeal hearing has yet to be fixed.
Businessman's "Secret" Daughter
A 58-year-old "secret daughter" (Ruth Simmonds) from a previous relationship (before he married) had been left £100,000 in a will of her businessman father (Ken Jordan) with an estate worth about £2,000,000.
He changed his will shortly before he died, leaving everything to a new partner.
Ruth Simmonds challenged the last will on the basis that her father may not have been in his right mind when he disinherited her. Judge Edward Murray reserved his judgement until 2016.
Battle Over Muddy Track
Edward Waddington owned land in Teffont Magna, near Salisbury - a dispute arose over an alleged right-of-way. Former SAS officer, Lieutenant Colonel David Wood and his wife Phillippa (Mr & Mrs Wood) bought a home from Lib Dem peer, Lord Harman in 2009.
Mr & Mrs Wood ran a horse-riding business, believing they had a right-of-way to take their horses across Edward Waddington's land.
Edward Waddington hosted shooting parties that cost £1,000 to attend and put up gates to block Mr & Mrs Wood crossing his land.
Edward Waddington claimed that he allowed Lord Sharman to "trespass", but objected when the traffic generated by his new neighbours' business "intensified".
At first instance (High Court in Bristol in 2014) it was held that in effect, Mr & Mrs Wood had inherited the right to use the track from earlier users.
Edward Waddington appealed but the Court of Appeal found in favour of Mr & Mrs Wood in July 2015.
Edward Waddington appealed again but the Supreme Court again found in favour of Mr & Mrs Wood and has been ordered to pay legal fees of at least £750,000.
Following the Supreme Court's decision, Mr Wood said that "It could have been solved at any point if Waddington had just agreed to sit down and discuss it. This dispute was a very minor dispute.".
Even Edward Waddington conceded that "it was right" that costs had been awarded against him.
Hairdresser - Stealing Clients?
Hayley Gibson-Forbes, an award-winning hairdresser had a franchise from Rush Hair since 2008. They entered into a 2-year agreement (in which Rush Hair undertook to pay her £50K) to end the franchise so she could open her own business, which included a ban on her opening a salon within 2 miles of her old business and conditions on staff recruitment. She subsequently claimed that she was forced into signing the restrictive deal by Rush Hair, whose bosses refused to budge in their negotiations.
When she opened a new salon in July 2016, 16 months (which she described as a "reasonable" period) later, Rush Hair sought an injunction preventing her doing so. Rush Hair withheld £15K that they had yet to pay her, with Andreas Panteli (Chief Financial Officer of Rush Hair) saying "we didn't want a similar salon opening nearby, taking our clients and staff with her".
In the High Court, Rush Hair explained that it had originally offered £100K for a 1 year non-competition agreement, but that this was reduced to £50K for a 2-year agreement.
Get A Job
A 41-year-old daughter (Danielle Ames) who was cut out of her late father's (Michael) £1M will (which left everything to her step-mother) has lost a legal claim, despite claiming that she had depended on him.
In Central London County Court, judge David Halpern QC, said that there was no reason why the daughter couldn't earn her own money, and that "Her lack of employment is a lifestyle choice.".
To Bow Or Not To Bow
The Finance Manager (Misook McDonald) of a UK-based Korean firm (Dongbu Daeoo Electronics) claimed that she lost her job because she would not bow to her boss (Ho Seung Yoo). She also claimed that she had been demoted from accounts to an HR role because she was no longer her boss’ preferred choice when a “pure ethnic native Korean” joined. Mistook McDonald had an English father and a South Korean mother.
She sued the firm for age, racial and sex discrimination - the matter arrived at an Employment Tribunal Hearing. The decision of the Tribunal is not yet known.
To B&B Or Not To B&B
Linda Marinelli Landor, an 81-year-old poet had been living in a four-bed 2,000 sq. ft. leasehold flat (said to be worth £3million) in Ashley Gardens (a mansion block overlooking Westminster Cathedral) for 40 years.
She had been accused by her neighbours of running a B&B and the freeholder (Ashley Gardens Freeholds Ltd) applied to have her lease forfeited, as a term of the lease was that it was to be used by a single family only.
In Central London County Court, one of the neighbours (Mrs Drummond, who lived immediately below Mrs. Landor’s flat) complained of a “constant stream” of bed & breakfast guests to the flat and “changing guests in the same day”. The freeholders’ barrister contended that Mrs. Landor had advertised for guests on websites (including Spareroom.co.uk and Airbnb) although it was accepted that the flat was no longer listed on those sites.
Mrs. Landor claimed that whether she had run a commercial guesthouse at the flat or not, she had not done so for 18 months or more.
Mrs. Drummond claimed that the problem was ongoing and that “We are still getting people walking above our heads at 4am and that “If this was a flat with a single family occupancy, we wouldn’t have nearly so many problems”.
Judge Lochrane found in favour of the neighbours, ordering Mrs. Landor to sell the flat, or face losing her long-leasehold interest in it.
In his judgement, he stated that “I am satisfied that Mrs. Landor’s neighbours have had to endure over very many years considerable levels of noise and disruption well beyond that which is regarded as reasonable in this crowded city”
Careless Words About Formula Milk
Hospital staff overheard a new father (in November 2015) refer to a preference for formula milk and reported it to social services (Kirklees, West Yorkshire) which removed the baby and placed it with father’s parents, as the Council said that the father displayed controlling and aggressive behaviour and to “struggle to manage his frustrations”.
An independent social worker investigated the matter and reported that she “struggled to understand” why the baby was taken into care and the baby was returned to his parents in February 2016.
The parents sued for damages and the matter came before Mr. Justice Cobb in the Family Division of the High Court and the judgement was delivered more than 15 months after the baby’s birth.
Despite the Judge’s instruction that the family’s lawyers should negotiate a “realistic” settlement, the hearing involved a QC, four other barristers, three firms of solicitors and lawyers employed by the Council and more than 2,000 pages of evidence was considered.
The Judge awarded damages of £3,750 for each of the baby, father and mother. However, the legal bills amounted to nearly £33,000 for the baby, nearly £21,000 for the father and just over £25,000 for the mother, while the Council’s bill came to another £40,000 (totalling more than 10 times the damages awarded).
The Judge stated “I am dismayed that the preparation of the case has been undertaken in a way that was not only contrary to my formal direction, but was wholly disproportionate to the issues. I deprecate the unwarranted expenditure”.
He went on to say that it would be “unprincipled” to raise the damages to cover the lawyers’ cost so that the family might get some money and that if he were to do so would “create what would swiftly become a dual-carriageway by-pass” around rules meant to stop abuse of legal aid. He also said “It is, I acknowledge, regrettable that because of the costs order I propose to make, the claimants are unlikely to receive these sums [damages awarded]”.
Brothers Fight Stepmother Over Second Will
Brothers Jonathan and Richard Powell took their stepmother (Aisla Williamson Powell) to court regarding which of two wills of their father (David) should take precedence.
An earlier will provided that their stepmother would receive £100,000, whereas a later will (made in 2009) provided that she would receive £125,000. The father died aged 84 in 2012, following a 20-year battle with Parkinson’s Disease.
The brothers argued that the stepmother has driven the will-making process.
The matter was heard before Judge Marc Dight in the Central London County Court, who found in favour of the stepmother saying “Their [the brothers] stance has, it is apparent to me, been driven by personal issues and not by a reasonable inquiry into their father’s state of mind” and that they were guilty of an “unreasonable failure to accept that the deceased and his wife were a devoted couple and the extent to which she was caring for their father in very difficult circumstances”.
Following the judgement, the brothers sought to have the costs (which exceeded £200,000) paid out of their father’s estate, but the Judge held that that would result in it being almost completed wiped out and that the brothers should exclusively bear the costs as he rejected the sons’ claim that there was a real doubt about the 2009 will which necessitated an investigation into their father’s state of mind”.
Five Month Marriage (30 Months in Court and Counting)
Marilyn Levesque and Damien Hancox have spent six times the length of their marriage in court trying to settle the terms of their divorce, and still no result.
They married in July 2013 (which Marilyn claimed the ceremony cost £200,000) and separated in December the same year. She claims that Damien (who is a commodities broker) had assets of £20 Million in 2007, the year he declared himself bankrupt.
Marilyn claimed that Damien operated Swiss bank accounts in company names and that he would regularly spend more than £4,000 on a one trip to a nightclub, as well as running up a £200,000 credit card bill in a year.
Damien’s barrister responded by saying that Marilyn had always “lived in student-style accommodation” prior to the marriage.
In the High Court, the Judge told the squabbling pair that “The more money you spend on legal proceedings, the less money there will be to share between you”.
Deal On flat Made In Coffee Shop
Filip and Nikola (two brothers) bought a flat in Hampstead (currently worth about £750,000) in June 2014 with money given to them by their mother.
Filip (now 29) was a Cambridge educated law lecturer, while Nikola (now 41) was a security guard with Tesco. Filip owned two others flats (in Cambridge & Southampton).
The purchase of the flat had been discussed in a coffee shop and Filip drew up the documentation, which Nikola signed - it provided that Nikola would live in the flat rent-free but it contained a provision that either of them could force a sale after a year.
Nikola expected the flat to be a long-term home (for him, his wife and their four children) while Filip saw it as a development opportunity (by developing several attached garages).
When Filip triggered the sale clause, Nikola objected on the basis that he had relied on Filip to prepare the paperwork and that he had not been informed that a sale could be triggered after a year.
The dispute was heard before Judge Michael Berkley in the Central London County Court - for Nikola, it was argued that “What Nikola wanted all along was to keep the home that he thought would be his for as long as he wanted it” and that “Filip knew that Nikola was relying on him to know the nature of the document he was signing ….”.
For Filip, it was argued that “Nikola didn’t ask anyone to explain [the deed] to him. He didn’t read the covering letter. He didn’t take any care.”.
In his ruling, the Judge found that Nikola “is not as dynamic as Filip” but was “willing to sign whatever Filip told him to sign, provided that he had the basic impact explained to him” and went on to say “I find that Filip chose not to explain the express power of sale and in particular the fact that either party could elect to sell the property against the other’s wishes after a year” and “I cannot find anything that Filip did wrong. It is very unfair and inequitable to say that Filip asserted undue influence in anything that he did”.
The Judge said that Filip had lived up to the “duty of candour” and that he was entitled to expect Nikola would take independent advice before signing the documentation.
The Judge ordered that the flat could go on the market after a month, to give Nikola and his family some time to “adjust to the idea” of leaving their home.
Nikola’s costs were estimated at £200,000 and the Judge said that he would consider a written plea for a reduction of those costs. It is not clear from the report of the case whether this amount included both parties’ costs, but in any event, it was a very substantial amount relative to the market value of the flat.
During the case, one of the barristers said that the brothers had previously enjoyed a “good relationship” but that the legal battle had caused a deep divide in their family.
Feud Over Family Silver
Grade II-listed Lyegrove House was once home to property magnate Manny Davidson and his wife, Brigitta and contained £17 million worth of art works (including masterpieces by Thomas Gainsborough, William Hogarth and Joshua Reynolds), jewels and silver.
Manny is a self-made millionaire, having left school at 14 and set-up Asda Property Holdings in the 1960s.
Their children (Gerald and Maxine) bought the Lyegrove House in 1993, with Manny & Brigitta moving to Monaco in about 2011 and leaving the contents.
Gerald is described as a successful businessman, who once worked alongside his father, now living in Hampstead having a passion for collecting Aston Martins and flying helicopters.
Maxine is a freelance art consultant and mother of two.
The parents have come into dispute with their children, requiring the “return of a large number of valuable chattels located in the county home owned by their children” amounting to 300 items, which includes a collection of silver worth £13 million built-up over 40 years.
In the High Court, the children counter-claimed for 180 items, including £3 million worth of jewellery, alleging that they had already paid for the jewellery or that Brigitta had “orally gifted” the items, a claim that Brigitta denies.
In court, the parents argued that the payment they received for the property in 1993 came from “income distributed to them [the children] from trusts settled by their parents” and alleged that in 2015 they tried to visit the house but were “excluded by their children”.
The children’s QC alleged that family relations had broken down in 2011 when two earlier disputes about the trusts were settled in favour of the children.
In 2015, Manny said “The children are very well off. They don’t need any more and they don’t deserve any more. I have been kicking myself that I ever set up the trust fund in the first place. That’s what’s wrong in this country. People give away money during their lifetime to avoid inheritance tax. If I had my time again, I would pay only for their education and a first home. After that I would not give them any more. They would have to fend for themselves”.
Reading Meters - Not Over Our Land
The dispute related to the right of access to read electricity and gas meters and had been ongoing since 2003.
Mrs. Mojgan Casillias’ meters could only be accessed over Carol and Frank Dickinson’s (both retired) 8ft. driveway between their respective homes in Davenport, Stockport and it resulted in Carol Dickinson stabbing another neighbour.
In 2015, at Manchester County Court, Judge Charles Khan found that Mrs. Casillias had a right of access to allow the meters to be read but the Dickinsons appealed.
The dispute reached the Court of Appeal, where the Dickinsons’ appeal was rejected. Lord Justice David Richards said “Where most neighbours would have found a sensible solution …. Mr & Mrs Dickinson took their stand on what they considered to be their strict legal rights. To their great cost, they were wrong about those rights.”
Mrs. Casillias’ costs were stated to be well over £200,000.
Following the Court of Appeal’s decision, the Dickinsons’ son (Peter) said “This whole thing has mushroomed into a situation that could result in my parents losing their home”.
Copyright (2017): Dave Owen, Executive Chairman, Pengaron Mediation Services Ltd
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