Tim Calland

Tim has substantial experience of business-to-business disputes and broader commercial litigation in a wide range of contexts and is able to bring his broad knowledge to find creative ways of approaching such cases.

Examples include:

• Representing the respondent to a Norwich Pharmacal application against a UAE-based professional who was prevented from disclosing information in his possession by UAE criminal law; part of the long-running Ablyazov litigation
• Representing a well-known middle eastern family, intervening in the UTB LLC v Sheffield United Ltd litigation (2019), to obtain orders to protect confidential information from being disclosed during the course of evidence in the trial
• A substantial claim by a finance house against a train manufacturer relating to the manufacture of train seats
• A claim relating to defective property arising out of a fraudulently procured insurance policy
• A claim to recover assets for a group of victims of a fraudulent forex-trading Ponzi scheme

Extensive experience of both corporate and personal insolvency. Tim’s experience covers every stage of the insolvency process, including contested petitions and administration applications, contested VAs, proof of claims, directions applications for creditors and office-holders, priority issues between secured creditors and claims relating to antecedent transactions, misfeasance and wrongful and fraudulent trading. Tim has a particular interest in property insolvency.

Tim’s broad experience allows him to bring an imaginative approach to his work. An example is McGuinness v Norwich & Peterborough BS [2011] EWCA Civ 1286, where he argued that a guarantor’s liability to a creditor was unliquidated and so unsuitable as a basis of a bankruptcy petition. The principle was eventually upheld in the Court of Appeal.

Other examples:

• Advising the administrators of a failed property-development company on the application of £15 million of damages awarded in a claim against the contractors who constructed tower blocks with defective and unsafe cladding
• Advising the liquidators of companies behind a failed fractional-ownership hotel-investment scheme on the recovery of assets from associates of its misfeasant directors
• Advising and representing a Chinese creditor in his application to place a UK plc into administration
• Advising liquidators on misfeasance and S.423 claims available following a company’s use of aggressive tax-avoidance schemes that subsequently failed
• Representing the liquidators of a finance company in TUV and preference claims arising out of the restructuring of a major finance group
• Representing a trustee in bankruptcy in a long-running claim to recover a property that was subject to an IVA trust and that had been the subject of orders in matrimonial proceedings between the bankrupt and his wife

REAL PROPERTY

Tim has extensive experience of most kinds of real property litigation, including title to land, rights over land, property-related torts and issues surrounding development and property finance. His clients range from large developers, estates and property funds to individual owners. His experience includes:

• Restrictive covenants: all issues concerning the construction, effect, enforcement and discharge of restrictive covenants. Recent cases include appearing in the Court of Appeal for the successful appellant in 89 Holland Park Management Ltd v Hicks [2020] EWCA Civ 758 (with John McGhee KC), one of Property Week’s top 10 property cases of 2020
• Easements: extensive experience of advising on and representing clients in disputes over easements and other prescriptive rights, including the leading modern case on the prescription of several fisheries, Loose v Lynn Shellfish Ltd [2016] UKSC 14, and more recently, representing the successful dominant owner in a claim to a right of way serving a church, The Incumbent of the Benefice of Saul v Hughes (2020)
• Development and overage agreements: Tim regularly advises on such agreements, and he recently represented Jesus College Oxford in arbitration on the construction of an overage agreement and the valuation of the overage (2018); he represented the successful developer in a recent dispute about the enforcement of an agreement for lease of a new-build retail unit in Ropemaker Properties Ltd v Bella Italia Restaurants Ltd & ors [2018] EWHC 1002 (Ch) (validity of termination notices) and Bella Italia Restaurants v Stane Park Ltd & ors [2019] EWHC 2747 (Ch) (effect of assignment under forward-funding agreement on enforceability of agreement for lease)
• Water, fisheries and the seashore: recent experience includes claims for urgent injunctive relief to protect water assets belonging to water and sewerage undertakers; advising on a statutory claim against the Environment Agency for compensation following river works to the Thames; representing riparian owners in claims against trespassing boat owners; and representing an ancient landed estate in the Supreme Court in a claim concerning the seaward extent of its prescriptive several fishery in Loose v Lynn Shellfish Ltd [2016] UKSC 14
• Mines and minerals: Tim represented Network Rail (with John McGhee KC) in the recent case of Tarmac Aggregates Ltd v Network Rail Infrastructure Ltd (2019), a claim under the Mining Code to establish the right to excavate limestone surrounding a railway tunnel, which settled on the first day of trial; and, also with John McGhee KC), Tim acted for the appellant in the appeal to the Court of Appeal in Branston Properties Ltd v ARC Aggregates Ltd, a case concerning the construction of an exception or reservation of minerals; Tim also has experience of advising on mineral rights and other customary rights in a manorial context, with particular reference to Inclosure Acts and the enfranchisement of copyhold land
• Rights of light: recent experience includes advising on a number of light issues, including advising the dominant owner in a central London development, which resulted in a multi-million pound settlement, and acting for the developer in a prestigious central-London development next to a major railway station
• Utilities and railways: acting for water and sewerage undertakers, electricity undertakers and railway undertakers, including advising on title issues and representation in claims to protect underground and other assets. Tim’s work for Network Rail in a recent Mining Code case has given him a detailed knowledge and understanding of historic railway legislation and related compulsory-purchase legislation and how it affects modern title claims

TELECOMMUNICATIONS AND PROPERTY

Tim has significant experience of litigation under the Electronic Communications Code. He mainly acts for landowners and other site-providers, although he has advised and represented Code Operators as well. He has practised in this area under both the old Code and the new Code, in claims in the County Court and more recently in the Upper Tribunal. His experience includes the following:

• Claims under Paragraph 20 and Paragraph 21 of the old Code
• Representing the successful developer in one of the few reported decisions under the old Code, PG Lewins Ltd v Hutchison 3G UK Ltd and EE Ltd (2018), in which his client sought to enforce a lift-and-shift agreement and claimed damages for its breach. The operators unsuccessfully claimed the Code gave them statutory immunity from suit. The decision remains important for the interpretation of the new Code
• Appearing in a number of cases in the Upper Tribunal under the new Code, including one of the most important cases under the new Code, Cornerstone Telecommunications Infrastructure Ltd v London & Quadrant Housing Trust [2020] UKUT 282 (LC), in which the Tribunal comprehensively set out for the first time the proper approach to the valuation of consideration and compensation for rooftop sites under the new Code; it is also an important decision on sharing and upgrading rights, and on the costs of references under Paragraph 20 of the new Code: Cornerstone Telecommunications Infrastructure Ltd v London & Quadrant Housing Trust [2020] UKUT 341 (LC)

LANDLORD AND TENANT

All kinds of commercial and residential landlord and tenant litigation. His commercial experience covers the whole range of disputes, including contested lease renewals, dilapidations, rent-review arbitrations. He has a particular interest in the complex issues arising out of tenant insolvency (especially in the retail context); Tim is general editor of Butterworth’s Property Insolvency. Recent experience:

• Representing the tenant in AEW REIT Plc v Mecca Bingo Ltd (2021) (reported as Bank of New York Mellon (International) Ltd v Cine-UK Ltd & Others [2021] EWHC 1013 (QB)), one of four conjoined cases on the effect of the COVID-19 pandemic on the tenants’ liability to pay rent under commercial leases, raising the construction of the rent-cesser provisions, implied terms and frustration; this is the first significant case of its kind
• Advising and representing (with Edwin Johnson KC) the claimant in a claim by a tenant of a retail unit on a retail park to restrain a derogation from grant by the landlord caused by it developing part of the estate as a drive-through Starbucks
• Representing a national developer in a contested lease renewal relating to a prominent building beside the Thames in London
• Advising a company that acquired the business of a national retailer in administration on the forfeiture of a lease of a major trading site
• Advising and representing clients in a variety of dilapidations claims, involving roofs, curtain walling and asbestos

Tim’s residential L&T experience covers both long-lease issues – e.g. service charges, enfranchisement, management issues – and those arising from residential tenancies, including protected, statutory, secure and assured tenancies. Clients include large London estates and registered providers of social housing. Recent cases:

• Advising the freeholder of a prestigious central-London block of flats on applications to the FTT to vary leases so as to allow compliance with the Heat Network Regulations 2015
• Advising a high-net-worth client on disrepair issues affecting the penthouse of a central London residential tower
• Advising and representing a central-London flat-owner in a dispute with a company owned by a middle eastern royal family over its use of an adjoining property
• Representing a large London landowning estate in a claim for possession of a prime central London property subject to a statutory tenancy under the Rent Act

Tim frequently acts in claims for and against banks. He has a specialism in mortgage litigation, including the creation, construction, priority and enforcement of mortgages, as well as mortgage fraud and mortgage regulation.

• Representing a high-street bank in its defence of a complex fraud claim arising out of the global financial crisis, valued in the tens of millions of pounds
• Representing a private bank in a priority dispute in which a subsequent mortgagee alleged misconduct on the part of the bank
• Representing the purchaser of a substantial central London property in a dispute about whether the sale by a mortgagee bank had passed good title in circumstances where the borrower disputed the bank’s right to sell

He has particular experience of acting for receivers and has spoken at the annual conference of the Non-Administrative Receivers Association. Examples:

• Advising a major high-street bank on its procedures for appointing fixed-charge receivers
• Defending receivers in a borrower’s claim that they sold charged property at an undervalue
• Resisting applications for injunctions restraining receivers from dealing with charged property
• Advising on the appointment of receivers by way of equitable execution against a world-famous private art collection

Tim also acts in more general banking disputes, including guarantees, security over chattels and choses in action, asset finance and receivables finance, promissory notes, performance bonds, failure-to-lend cases, mis-selling of complex financial products and regulation under the FCA Handbook, e.g.:

• Representing a bank in a substantial claim for damages by a business customer for the bank’s allegedly wrongful failure to lend it money
• Representing a bank in a claim for damages by a business customer for the bank’s allegedly negligent operation of its loan-facility account
• Advising a high-net-worth customer on claims against a bank for mis-selling a complex foreign-currency denominated loan product

He also represents clients in disputes concerning the construction of wills, the appointment and removal of trustees and executors, in contentious probate matters and in cases concerning vulnerable elderly clients.

Recent examples of work include:

• Representing a professional pension trustee in an urgent claim to compel its co-trustee to complete a disposal of part of the pension fund assets
• Representing executors in a claim to establish title to real property assets owned by the deceased under an assumed name

Experience of claims against professionals relating to his main areas of practice (both claimant and defendant), including against solicitors (especially in property-related claims), accountants (especially in tax-related claims), receivers, valuers and architects. By way of example, Tim has recently advised a property-investment company on multi-million pound claims against solicitors arising out of the failure of fractional-ownership care-home schemes.