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BARRISTERS > DAVID LOWE QC
DAVID LOWE QC |
CONTACT |
13-14 Old SquareReception at 14 Old Square
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Year of Call: 1965 Appointments
Practice David’s preference is to undertake work he enjoys where there is an objective and a challenge. With his long experience, he is frequently instructed to devise, construct and effect a solution to a complex problem or a compromise in contentious litigation. In addition to legal skills and analysis, creative and lateral thinking, coupled with patience and persistence, are prerequisites of success, especially where the problem or litigation is of an apparently intractable character. Prior to his taking silk, David’s practice covered all aspects of property law and the law of trusts and also involved extensive work as an arbitrator. Since becoming a QC, the scope of his practice has widened to cover both traditional Chancery and commercial areas. His main interests are now in private client and related chancery and commercial work, including property law and charities. In the private client field, David focuses particularly on English and offshore trusts. He has had long experience in relation to English settled landed estates with an emphasis on heritage property – collections, historic houses and their contents, including the sale of high value chattels (for a number of years, David was a member of the tax committee of the Historic Houses Association). Offshore, David was involved in the trust aspects of the sale of the Thyssen-Bornemisza Collection to the Kingdom of Spain: and David was subsequently involved in matters affecting the Art Collections retained by the Thyssen-Bornemisza family. Although the bulk of his private client work is advisory (and may involve drafting which he enjoys), he also undertakes contentious litigation. Many of his cases involve applications covering directions by trustees, variations of trusts (including wills), and compromises of family disputes or problems affecting settled property and wills or settlements, including the variation of wills within two years of the death, and applications under the Inheritance Act 1975 (where there is scope for creative thinking and solutions particularly in relation to high value estates). Certain of these cases are high profile cases of a sensitive and confidential nature and any application to the Court is dealt with in private. David’s advice has frequently been sought in relation to the trust aspects of commercial transactions and in relation to commercial trusts. He has been involved in a number of major takeovers (Wellcome by Glaxo, Forte by Granada, and Savoy Group by Blackstone) where the key votes have been held by trustees (private, public or charitable) and issues have arisen as to their powers and duties. He was also involved in a range of matters arising out of Lloyds and Reconstruction & Renewal, and miscellaneous matters involving incentive and other funds held on trusts for executives or other classes of employees. David’s advice has frequently been sought by local authorities in relation to land held by them on trusts (charitable or non-charitable) where issues have arisen as to the validity and effect of the trusts in the context of the intended future use or disposal of the land. These have included a number of cases involving playing fields and recreation grounds and other facilities. David’s trust work also embraces all areas of charity law and practice, and includes advice to national collections. On the property side, David is attracted by any unusual case whether involving old law and historical research or new issues. One such case featured the Great Pool at Lincoln, another Seacoal Lane in the City: and in another such case, he appeared for the Church Commissioners in litigation relating to redundant railway land at Kings’ Cross. He was involved in property and commercial aspects of the water, electricity and rail privatisations. His advice has also been sought in the context of the structure of new developments (such as Canary Wharf) or of schemes (e.g., relating to the construction of Power Stations) intended to benefit from tax reliefs or incentives. David’s practice covers a wide range of other areas, including agricultural tenancies, retention of title, housing associations, education and local government. Since qualifying as a Mediator, David has utilised his experience and skills in acting as a Mediator in a wide range of chancery and commercial matters. David is particularly interested in acting in relation to trust disputes, claims in relation to family property or assets held subject to continuing arrangements, and applications under the Inheritance Act 1975, a range of situations where the Mediation is held with a view to achieving either an immediate compromise or a proposed compromise which is capable of being approved by the Court on behalf of beneficiaries who are minors or are unborn. He is happy to act as counsel in connection with a Mediation. He is also happy to act as an arbitrator or an expert witness. Notable cases Include the following (arranged chronologically) Re Bramblevale [1970] Ch 128: [1969] 3 WLR 699: [1969] 3 AER 1062. CA, reversing Megarry J. (Civil contempt: the standard of proof required is that required for a criminal contempt, i.e., beyond reasonable doubt and not on the balance of probabilities) Re Meadows (Thomas) & Co Ltd and Subsidiary Companies (1960) Staff Pension Scheme Rules [1971] Ch 278: [1970] 3 WLR 524: [1971] 1 AER 239. Goff J. (Pension Scheme – Benevolent Fund – Rule against Perpetuities – the first reported case on the application of the Perpetuities and Accumulations Act 1964) Re Edmondson’s WT [1971] 3 AER 1121: Goulding J. [1972] 1 WLR 183: [1972] 1 AER 444: CA, reversing Goulding J in part and affirming him in part. (Class closing rules – exclusion of rules) Epps v Ledger (1972) 225 EG 1373. Templeman J. (Oral agreement for agricultural tenancy) Watts v Waller [1973] QB 153. CA. (Land Registration – registration wife, not in occupation of matrimonial home, of rights under Matrimonial Homes Act 1967) Yates Building Co Ltd v Pulleyn (RJ) & Sons (York) Ltd (1975) 237 EG 183: CA reversing Templeman J. (Exercise of option – purported exercise by notice sent by first class post and received in due time – the requirement in the option that notice be sent by registered or recorded delivery post was “directory” not “mandatory” and thus did not need to be complied with) Re Northern Developments (Holdings) Ltd. Megarry V-C (6 October 1978, unreported): referred to by Lord Millett in Twinsectra Ltd v Yardley & Ors [2002] 2 AC 164: [2002] 2 WLR 802: [2002] 2 AER 377 HL (Constructive Trust – Quistclose Trust) Manchester City Council v Greater Manchester County Council (1980) 78 LGR 560: HL, affirming CA. (1979) 78 LGR 71: CA, reversing Smith J. (Trust established by local authority for the purpose of providing free or assisted places at independent schools – proposal to provide for seven year period of schooling – power of local authority to incur immediate expenditure (to cover the seven year period) under S.137 of the Local Government Act 1972 and to create a trust (to provide the financial assistance over the seven year period) as incidental to or consequential on that expenditure) Prudential Assurance Co Ltd v Newman Industries Ltd & Ors [1979] 3 AER 507 Vinelott J. (Minority shareholder action) Re Earl of Strafford (deceased), Royal Bank of Scotland Ltd v Byng & Ors [1980] Ch 28: [1979] 2 WLR 459: [1979] 1 AER 513: (1978) 123 SJ 50: CA, affirming Megarry V-C. [1978] 3 WLR 223: [1978] 3 AER 18: (1978) 122 SJ 472: Megarry V-C. (Trustees’ power to effect a compromise under S.15 of the Trustee Act 1925). Subsequently conceived and negotiated terms of compromise in relation to “the Colebrooke Chattels” Re Leigh’s Settlement Trusts 1979 (unreported). [1981] CLY No. 2453. VC County Palatine of Lancaster. (Trustees’ power to effect appropriation by reference not to the cash value of the assets appropriated but to their value as a proportion of the trust fund as a whole) Turner v Turner [1984] Ch 100: [1983] 3 WLR 896: [1983] 2 AER 745. Mervyn Davies J. (Rule in Re Hastings-Bass – setting aside Deeds of Appointment made by Trustees) Marius Goring v Equity (No. 1) (1986) (unreported) Browne-Wilkinson VC. (invalidity of amendments to Rules of Equity) Re Carmel College (1989) (unreported) Hoffman J. (Education – independent school offering full and weekly boarding arrangements – held on application by representative parents that governors had power to terminate weekly boarding arrangements on one term’s notice) Golden Bay Realty Pte Ltd v Orchard Twelve Investments Pte Ltd [1991] 1 WLR 981. JC, affirming decision of the CA in Singapore affirming the decision of the trial Judge. (Contract – penalty – contract in statutory form for sale of a commercial property – provision for payment of liquidated damages by vendor for delay in completion – relief against penalties inapplicable). This was a test case brought by a purchaser and taken to trial in Singapore in 1985 to determine a very large number of similar cases. Compaq Computers Ltd v Abercorn Group Ltd [1991] BCC 484 Mummery J. (Retention of title – priorities) Re Dan Air 1991 (unreported). Scott J. (approval of terms of involvement of Company Doctor) Rahman v. Chase Bank (CI) Trust Co Ltd [1991] JLR 103, instructed by Chase Bank (CI) Trust Co Ltd, subsequent to the judgment and in relation to the compromise of the litigation Re Lemos (1992) (unreported) Mervyn Davies J. (Grant of Probate) Re redundant GNR land at Kings Cross (1990) (unreported) Hoffman J. (1991) CA reversing Hoffman J (unreported). (Validity of 19th Century pre-emption rights over redundant railway land) Oldham Metropolitan Borough Council v Attorney-General [1993] Ch 210: [1993] 2 WLR 224: [1993] 2 AER 432: 91 LGR 71. CA, reversing Chadwick J. (Charity – land held by local authority for the purpose of providing playing fields – application by local authority to court for authority to sell the land to developer and use the proceeds to provide new playing fields with better facilities – held by trial judge that the sale of the land would involve an alteration of the “original purposes” of the charity and that since this did not fall within any of the circumstances in S.13 of the Charities Act 1960 (cy-pres schemes), the court had no power to authorise the sale of the land – held by CA that the sale of the land and the reinvestment of the proceeds to be held for precisely the same charitable purposes did not involve an alteration to the “original purposes” of the charity and did not require a scheme and thus that the court had power to authorise the sale of the land if appropriate) Von Knierem v Bermuda Trust Co Ltd (1994) Butterworths Offshore Cases and Materials, Vol 1, 116-125, Meerabux J, Supreme Court of Bermuda – “the Star Trust Case”. (In the context of a power struggle on the board of a company in which the trust had a substantial shareholding, the Protector (the lawyer and personal friend of the director whose directorship was in issue) purported to remove the Defendant as trustee and appoint another trustee in its place – held that the Protector’s power to appoint and remove trustees was a fiduciary power but that an exercise of the powers could only be avoided if a corrupt purpose on the part of the Protector could be proved). Royal Heritage Life Assurance Ltd v Pensions Ombudsman. June 1997 (appeal against determination by Pensions Ombudsman) ** Re the Estate of Diana, Princess of Wales Deceased (1997) Acted for Princes William and Harry in relation to the problems arising in respect of the Estate and the Will of the Princess, and including the application made by Princes William and Harry (Guardian ad Litem John Major) against the Executors of the Princess to vary the trusts of her Will (approved by Scott V-C on behalf of Princes William and Harry on 19 December 1997) In the Matter of the Y Trust (Cayman Grand Court): Smellie CJ, Reasons 17 August 1999 (Trust – multiple causes – approval of compromise) Capital Cranfield Trust Corporation Ltd v. Sagar [2000] AER (D) 212 Neuberger J. (Pension Scheme – trustees’ powers exercisable notwithstanding the absence of a principal employer to concur in their exercise) Bath and North East Somerset Council v Attorney-General [2002] EWHC 1623 (Ch). [2002] WTLR 1257: (2002-03) ITELR 274: [2002] NPC 111. Hart J. (Charitable trust – public recreation (sport) – resulting trusts. Important case on approach to be adopted when deciding whether trusts are or are not exclusively charitable (the Charity Commission had previously indicated that their view was that the trusts were not charitable). Also analysis of resulting trust position in the context of a situation where a trust was created in a conveyance for value). Re G Deceased (2004). Application by widow under Inheritance (Provision for Family and Dependants) Act 1975 in relation to a high value estate. Raised question of the correct approach on an application by a widow after the decisions in White v White and Lambert v Lambert. Compromise approved by Court on behalf of minor and unborn beneficiaries. Re J S Trust. 2005 Supreme Court of Bermuda (S.47 of the Trustee Act (Bermuda) is wider than S.57 of the Trustee Act 1925: it is a hybrid section, combining elements drawn from S.57 of the Trustee Act 1925 and S.64 of the Settled Land Act 1925, and an order under S.47 is capable of varying beneficial interests under a trust if there is a sufficient nexus between the particular “transaction” authorised under S.47 and the variation effected. See Article by David in The Lawyer 13 June 2005).
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