Dattani & Anr v Ferns [2024] EWHC 2980 (Ch)
In his judgment Dattani & Anr v Ferns [2024] EWHC 2980 (Ch), handed down on 20 November 2024, Mr J Thompsell decided that Master McQuail was right that a seller’s conveyancing solicitor who knew of a Form K charging order restriction on title to a house under sale but did not deal with the proceeds of sale in accordance with that charging order does not impose on that solicitor a constructive trust for the judgment debtor’s share of the proceeds of sale of the charged property. A case of dishonest assistance based on knowledge of the Form K restriction must go to trial.
Master McQuail gave judgment on 9 February 2024 on Ferns’ application for strike out and/or summary judgment of a claim based on two limbs: (1) constructive trust alone, and (2) dishonest assistance: see here. Master McQuail struck out both limbs. On (1) she said that there was no such case good in law, based on well-established law. On (2) she said that the claim of dishonesty, which was based on knowledge of the form K restriction alone, was not enough.
On appeal by the Claimants of the decision on both limbs, Mr J Thompsell agreed that there was no constructive trust without the dishonest assistance claim, and the constructive trust claim added little to the dishonest assistance claim. Thus the appeal against limb 1 failed. He concluded on (2) that the claim in dishonest assistance had been pleaded sufficiently, and must be decided on its facts at trial. Thus the appeal on ground 2 succeeded.
This is a case of likely considerable interest to conveyancers. A copy of Mr J Thompsell’s judgment is at here.
Cecily Crampin acted for Ferns at first instance and on appeal.
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