Oliver Caplan

East Riding of Yorkshire Council as administrating authority of the East Riding Pension Fund v KMG SICAV-SIF-SA [2024] EWHC 1069 (Ch)

Oliver represented the Respondent, an investment fund located in and subject to the laws of Luxembourg. The Respondent offers the opportunity to invest in dedicated sub-funds. KMG SICAV-GB Strategic Land Fund is such a sub-fund, concerned in investing in the UK property market (the Sub-Fund). The Petitioner is a local council, acting in its capacity as administrator of a pension fund. The Petitioner invested in the Sub-Fund. The Sub-Fund was liquidated.

The Petitioner presented a petition to the Court to wind up the Sub-Fund pursuant to Sections 220 and 221 of the Insolvency Act 1986 (IA86), stating that the Sub-Fund was an unregistered company within the meaning of section 220(1) IA86, that the Petitioner had standing to bring the Petition as a contingent creditor and arguing that the Court ought to exercise its discretion and wind up the Sub-Fund.

The Court determined that the Sub-Fund is not an unregistered company for the purposes of Section 220(1) IA86, determining that the definition does not extend to entities that are neither associations nor companies, not registered in the UK. It was also considered that it is not the intention of Parliament that the provision extends to entities of the type of the Sub-Fund. Furthermore, upon considering expert evidence, it was determined that the Petitioner could not be considered a contingent creditor for the purposes of the law of Luxembourg.

Accordingly, the Petition was dismissed.

The case has been extensively reported including being referred to in the commentary to Insolvency Proceedings in Volume II of the Civil Procedure Rules and the commentary to Sections 220 and 221 of the Insolvency Act 1986 in Sealy and Milman 

 

Secretary of State for Business and Trade v 1) Kadri Korkut 2) Veysi Korkut

Oliver represented the SoS upon a claim for the disqualification of the Defendants. It was alleged that the company had failed to comply with its statutory obligations by employing an illegal worker.

The matter was listed for trial before District Judge Obodai over 5 days. The Judge ordered disqualification for a period of 10 years for each director. Having found that they had colluded with each other and witnesses with a view to give false evidence and committed perjury. Moreover, they had encouraged a vulnerable asylum seeker to give false evidence.

Permission to appeal was refused by Fancourt J.

The case has been extensively reported including being referred to in Mithani: Director Disqualification

 

Marla International Limited v Ready4S Limited [2021] EWHC 1968 (Ch).

Oliver represented the Defendant upon an application to set aside Judgment in default. The Claimant pursues its claim on the basis of alleged breaches of an app development contract, misrepresentation and fraud. Further, the Claimant seeks declarations as to intellectual property rights vesting in developed source code. The Claimant claims damages in excess of £1m.

Oliver appeared before Deputy Master Raeburn upon a 2 day application upon which Judgment was set aside in relation to particular allegations of breach of contract and misrepresentation pertaining to fraud. Both parties are presently appealing the decision, permission applications pending.

 

1. Staffordshire Moorlands District Council v Ball.

Oliver represented the Defendant upon a claim for possession of land. The Defendant occupied the land believing the same to belong to him. The Defendant counterclaimed adverse possession.

Oliver appeared before HHJ Salmon upon a 7 day trial. Whilst HHJ Salmon found for the Claimants upon the facts, he agreed with the Defendant’s legal analysis that 1) whilst a tenant’s occupation of adjacent land would ordinarily accrue to the landlord this was a rebuttable presumption; 2) upon a Section 98 defence the period for establishing adverse possession could accrue concurrent to developing possessory title of unregistered adjacent land.

 

Secretary of State for Business, Energy and Industrial Strategy v Roth

Oliver represented the Claimant upon a claim for disqualification of the Defendant as a company director pursuant to Section 6 of the Company Directors Disqualification Act 1986. The Claimant alleged that he had caused a company to trade to the detriment to HMRC. The Defendant defended on the basis that tax matters were left principally to his co-director and company accountant.

Oliver appeared before HHJ Halliwell upon a 3 day trial following which he disqualified the Defendant for a period of 3 years. Notwithstanding the corporate structure the Defendant was unable to absolve himself of his individual responsibilities.

 

Chetwyn v Walley

Oliver represented the Claimant. The Deceased, having prepared 2 wills, appointed the Defendant as executor on the earlier and the Claimant upon the later. The Claimant made distributions from the estate pre-grant upon the encouragement of the Defendant. The Claimant sought pronouncement of the later will. The Defendant alleged that the later Will was invalidly attested.

Oliver appeared before DJ Obodai upon a 2 day trial. She found the later will had been properly executed and the Defendant’s evidence was unreliable. She directed that the Defendant meet the Claimant’s costs, finding that allegations of intermeddling had not been made out.

 

Stoke on Trent City Council v H

Oliver represented the Defendant upon a claim for possession of a residential property let by way of introductory tenancy. The Defendant suffered from mental and physical health conditions and was disabled for the purposes of the Equality Act 2010 (EA 2010). The Defendant defended on the basis of, inter alia, alleged direct and indirect discrimination under EA 2010 (PSED), breach of the Claimant’s Public Sector Equality Duty under Section 149 EA 2010 and the Defendant’s convention rights under the Human Rights Act 1998.

Oliver appeared before Recorder Bacon QC upon a 3 day trial. The Judge found the Council to have indirectly discriminated against the Defendant and that it had breached the PSED. Moreover, he found the Council to have failed to properly consider options available to it, alternative to possession. Accordingly, the Claim was dismissed.

 

Commerz Real Investmentgesellschaft mbH v TFS Stores Limited [2021] EWHC 862 (Ch)

Oliver represented the Defendant upon a Summary Judgment application.
Upon the claim it was said that the Defendant / tenant held a five-year lease of a unit within the UK’s largest shopping centre – Westfield, Shepherd’s Bush, London. The Defendant ceased trading several times as a consequence of the COVID-19 pandemic and failed to pay rent and service charge liabilities, citing loss of income as a reason.

The Claimant landlord issued a claim for rental and service charge arrears amounting to £166,884.82 (inclusive of VAT) and interest at the contractual rate.

Oliver argued that the claim was issued prematurely contrary to the Code of Practice for Commercial Property Relationships During the COVID-19 Pandemic. Also, that the claim was a means of circumventing measures put in place to prevent forfeiture, winding up and recovery, and pursuing it was exploiting a “loophole” in the restrictions placed upon the recovery of rent put in place by the Government. Oliver additionally argued that the claimant was obliged to maintain insurance for loss of rent resulting from a notifiable disease and/or government action and had to claim under the loss of rent insurance policy before commencing proceedings to recover rent and that the rent cesser provisions in the lease, properly construed, applied to the COVID-19 pandemic which amounted to a suspending event for the purposes of the lease.

The case has been extensively reported including being referred to in the commentary to Rule 24.3 of the Civil Procedure Rules

 

 

Dahou v Dahou [2019] – Manchester County Court

Oliver represented the Claimant upon a 5 day trial before Her Honour Judge Evans. The Claimant pursued her claim against her sister. The Claimant sought an interest in a residential property under the Trusts of Land and Appointment of Trustees Act 1996, The property was purchased by the parties in 1986 and was solely held in the Defendant’s name given the Claimant was aged 17 at the date of purchase. It was not recoded upon the register of title. At trial both litigants and many witnesses of fact admitted commission of offences including an intention to mislead the Court. The Claim succeeded with the Claimant’s benefit being calculated at over £250,000.

 

The Secretary of State for Business, Energy and Industrial Strategy v Lal Chhiber [2019] High Court, Business and Property Courts in Manchester

Oliver represented the Secretary of State upon an application for the disqualification of the Respondent as a company director, made pursuant to S.6 (1) of the Company Directors Disqualification Act 1986. It was said that the Respondent caused or allowed the company to participate in transactions which were connected with MTIC fraudulent evasion of VAT such connections being something which he either knew or should have known about. The Court directed a disqualification period of 13 years.

 

1) Begum 2) Ilyas v Aslam [2019] – Land Registration – First Tier Tribunal (Manchester) 

Oliver represented the Respondent upon a day trial before Judge McAllister sitting at the Land Registration – First Tier Tribunal upon an application seeking declaration that a Declaration of Trust benefiting the Respondent was void and transfer of property. The Applicants and further family members alleged that the Declaration of Trust, signed by executors to a Will to the benefit of the Respondent, had been procured by fraud and had, thereafter, been compromised by discrete agreement reached in Pakistan. Serious allegations were made against the Respondent (including an allegation of attempted murder as against an alleged associate). The Respondent succeeded and was entitled to an order directing the property be transferred into his name absolutely.

 

Davis v 83 Central Management Company Limited [2018] – Property Chamber (Residential Property) – First Tier Tribunal (Birmingham, sitting in Manchester)

Oliver represented the Respondent upon a 1 day trial before Judge T N Jackson, sitting at the Property Chamber – First Tier Tribunal. The application was made pursuant to paragraph 5A to Schedule 11 of the Commonhold and Leasehold Reform Act 2002. The Applicant sought a determination of the payability of administration charges incurred in respect of account reviews and dispatch of demand letters. The same was not followed by issue of a Section 146 Notice. In the present case the relevant lease entitled the Respondent to demand payment of costs incurred “incidental to” as opposed to “in contemplation of” the preparation and service of a Notice. The Application was dismissed so far as it was determined that the phrase adopted in the lease was of wider interpretation and did not require a Notice to be served. The Respondent was awarded its costs of the Application in their entirety.

 

1) Wilcox 2) Slater v Hall [2018] – Manchester County Court

Oliver represented the Claimants upon a 3 day trial before His Honour Judge Smith. The Claimants sought special and general damages as against the Defendant builder in respect of defective and incomplete works, partially funded by local authority grant, upon a renovation of an entire property. The Defendant alleged that the Claimants had directly instructed sub-contractors and denied breach. successfully claiming the full value of the claim. Oliver was initially instructed by solicitors and thereafter proceeded on public access instruction.

 

1) Onn 2) Khim v Trivelles Hotels and Resorts Ltd [2017] – Manchester County Court

Oliver represented the Defendant. The Claimants sought repayment of deposits, forfeited upon a failure to comply with a notice to complete. The Claimants pleaded repayment on the basis of contractual construction, breach of contract and alleged that the forfeiture clause was penal and therefore unenforceable. The Defendant counterclaimed for loss. Oliver successfully represented the Defendant at a trial of preliminary issue pursued on the basis of contractual construction, successfully pursued an application for security for costs and successfully defended the proceedings at trial and upon the Counterclaim, the same being awarded in full and costs awarded in their entirety.

 

Bear Necessities Daycare Limited v Lancashire Fuels 4 U Ltd and another [2015] EWHC 721 (QB), [2015] All ER (D) 29 (Apr)

Oliver represented the Respondents upon an interim application for an order for delivery up of vehicles sub-leased to the Defendant, pursuant to Section 4 of the Torts (Interference with Goods) Act 1977, before Swift J DBE. The Applicant sought to rely upon its own breach of contract upon the head lease and further alleged breaches by the Respondents. It was determined that it was neither just not proportionate to order delivery up in all the circumstances notwithstanding the obvious effect upon the Applicant’s own contract.

The case has been extensively reported including being referred to in Clerk and Lindsell on Torts – Chapter 16 – Wrongful Interference with Goods