Toby Bishop

Called 2008

Toby is a busy chancery junior specialising in property, probate and insolvency litigation. He practices from Bristol and London.

If you would like to discuss a matter, before deciding whether to instruct Toby, you are welcome to call his clerks on +44 (0)20 7405 6114 and ask to speak with him directly.

Property & Real Estate

Toby specialises in property matters including, but not limited to: landlord and tenant, with a particular interest in forfeiture and relief; trusts of land; adverse possession; boundaries, rights of light, rights of way and other easements; enfranchisement, lease renewals and right to manage applications. Recent instructions include:

S, L, G, M –v- D (2017): The freehold vested in Toby’s client, a Panamanian company trustee. 4 lessees served section 42 notices seeking new leases after the prescribed period for registration and before registration at a time when, by operation of s.7(1) of the LRA 2002, the transfer had become void and title reverted to the Crown. The Panamanian company had not given counter-notices and would be obliged to grant new leases at a low premium if the notices were valid. The issues included: whether s.7(3) of the Land Registration Act 2002 operates so as to retrospectively validate a s.42 notice which was invalid when given; the application of the presumption of regularity in relation to an application to the Registrar; and the limitations of the doctrine that a party may not rely on its own wrongdoing.

EBS and ors –v- Gungor (ongoing): in a claim to enforce compensation provisions in a party wall award, Toby’s client succeeded on appeal to Newey J reversing the Recorder’s order allowing the Defendant permission to amend on the first day of the trial

PEL –v- P and ors (2017): the vendor of the freehold interest in a London hotel instructed Toby to advise and appear at first instance and on appeal. The occupant issued a claim for a new lease and associated declarations, including that a later lease was a sham. Issues included: whether the time limits in the 1954 Act are a limitation period for the purposes of CPR 17.4; whether a new cause of action is a new claim, otherwise than in relation to the Limitation Act 1980; and whether a monthly periodic tenant may bring a claim for a new lease

Fuel station portfolio (2016): the freehold owner of a portfolio of fuel stations leased to a national supermarket group instructed Toby to advise as to assignment of the leases in the course of the lessees restructure and the strategy around the release from AGAs and GAGAs

Developer –v- National Restauranteur (2016): advising a developer as to the enforcement of an agreement for a lease. The principal issue was compliance with a clause requiring ‘all reasonable endeavours’.

SPL-v-SK (2016): in High Court and County Court proceedings, Toby’s client was a Bahmanian trust company, owning a substantial London building. Possession orders were obtained against a defendant claiming to be a tenant, she re-entered after enforcement. A civil restraint order was made against SK on her application to stay the warrant of restitution. In related Chancery Division proceedings SK sought declarations as to her beneficial interest in the land arising by proprietary estoppel or constructive trust. Toby’s client’s applications to strike out those claims as an abuse of process and for summary judgment succeeded

Dixon-v-Judah (2016): Toby’s landlord client successfully resisted claims flowing from peaceable re-entry of business premises. The issue was whether the landlord had waived its right to forfeit through demands for past rent and offering not to forfeit if the tenant’s covenants were observed in future

Benveniste-v-Ricorder and BoS (2016): in cross claims between freeholder and mortgagee, for the forfeiture of a residential long lease and relief, issues arose as to whether service charge arrears demanded without the prescribed information; and costs of tribunal proceedings, not awarded in the tribunal, are recoverable as a condition of relief, applying Chaplair-v-Kumari [2015] EWCA Civ 798

Ferns –v- Britstop and Merbar (2016): opposing an application to appoint a manger (s.24 L&T 1987), successfully arguing the s.22 notice was invalid due to its failure to particularise a breach or give time to remedy remediable breaches. Toby’s client obtained orders in the First Tier Tribunal for costs against the applicant and his solicitor

B –v- B (2016): a dispute between brothers in relation to agricultural land, Toby’s client wished to realise development potential against his brother’s wishes. He did so through a partition and sale claim relying on section 7 of ToLATA

Theatre –v- Hotel Developer (2016): a hotel developer sought Toby’s advice in relation to an alleged infringement of rights of light in a converted theatre. The issues include the effect of the dominant owner’s consent to an earlier development, applying W.H. Bailey –v- Holborn and Frascati; sealed windows; the prospects of obtaining an injunction; the assessment of damages; and negotiating strategy

SK-v-WK (2016): former tenants’ claims for disrepair, a deposit penalty and harassment. Toby’s landlord and agent clients obtained orders striking out the claim following the tenant’s procuring permission to amend on a without notice application and failing to effect service out of the jurisdiction

Freeholder-v-Old Co, Guarantor and New Co (2015): a landlord of business premises instructed Toby to advise on a strategy following its tenant entering insolvent administration while in arrears of rent, including how and whether to forfeit and the AGA and GAGA structure for a replacement lease

Probate & Inheritance

Toby is an associate member of the Association of Contentious Trusts and Probate Specialists. He is instructed in a range of contentious probate, inheritance and estates work. Recent and ongoing cases include:

Re. Ferguson (ongoing): Toby acts for 2 grandchildren in claims for devastavit, breach of trust, dishonest assistance and knowing receipt against their father and uncle, the latter as executor de son tort. Master Price accepted at an interlocutory stage the Defence amounted to an admission and ordered an interim payment for marginally less than the full value of the claim

Ramsey-v-Ramsay [2015] All ER (D) 32 (Sep): the testatrix’ son, supported by 5 of his 6 siblings, brought proceedings against his sister as executor of their mother’s estate. The executor sister was represented by Toby at trial and succeeded in establishing her mother’s testamentary capacity following allegations her testamentary dispositions had been influenced by insane delusions. The case is a useful guide to the weight to be given to post-mortem geriatrician expert reports

Re. X (ongoing): Toby is instructed by the executor of a substantial estate including real estate in London, the South East and the Channel Islands. A dispute arose in relation to tax planning and claims of proprietary estoppel by one of the beneficiaries

Re. W (ongoing): sons promised their father on his deathbed they would disclaim any interest in his estate, but resiled from their promises. Toby is instructed by the father’s husband who seeks determinations as to whether: the sons are estopped from claiming a share of the estate; he has a proprietary interest, arising under a constructive trust; and whether the application of the intestacy rules makes reasonable financial provision for the purposes of the 1975 Act

Re. Bisnath (ongoing): Toby is instructed by the daughter and sole beneficiary, who was a child when her mother died. She brings claims of devastavit and breach of trust against her executor aunt and executor de son tort uncle. Issues include the effect of a child’s consent to the executor’s self-dealing and misappropriate of estate assets

Re. O (ongoing): a disappointed beneficiary instructs Toby in relation to a substantial estate including agricultural land in the south east of England. A mother prepared a deathbed will departing from previous testamentary structures, by which she had passed her family estate to her children, in favour of a will by which she passed her estate to the children’s step-father. The step-father sought to transfer a substantial part of the estate outside of the family. Issues include whether the identical wills were mutual, undue influence and knowledge and approval

Re. M (2016): Toby was acting for the personal representative and residual beneficiary in relation to claims brought by the deceased’s adult son pursuant to the 1975 Act and his ex-wife’s debt claim

Re DG (2016): part 8 claim seeking directions to protect personal representatives against a beneficiary’s demands for disclosure, further enquiries and distribution

Re. Yearwood and Brown (ongoing): a dispute between 2 estates as to the deceased’s respective shares in property in London. In issue is the testamentary capacity of one of the testators and the validity of a marriage and testamentary documents executed outside of the jurisdiction

Re. C (2016): Toby was defending an estate against a 1975 Act claim brought by a co-habitee, who had left the deceased’s home to live with another man. Upon her return the testator recorded his co-habitee’s declaration that their relationship was strictly platonic. The issue was whether their relationship fell within the multifarious nature of marital relationships, for the purposes of s.1(1A)

Re H (ongoing): a Florida Bank instructs Toby in relation to its recovery of a debt against the estate of a deceased British property developer and hotelier. The estate’s assets could meet less than 5% of its debts. Having administered the estate for 4 years, the administrator has applied for an insolvency administration order and a validation order for its fees and disbursements over that period

Insolvency

Notable cases

Re: A Company: advice and representation in a successful application to restrain the presentation of a petition with indemnity costs

Re: Patel: setting aside a bankruptcy order, applying Mersey Docks –v- Kilgour the petitioning creditor was imputed with the original creditor’s knowledge of an alternative address for the debtor. Creditor had not satisfied Rule 6.3(2) as a result of its failure to attempt service at that address, order set aside pursuant to s.282(1)(a)

Re: A Company: advice as to winding up, CVA, moratorium and administration and representation in winding up and administration proceedings

Re: Decktor: instructed by an individual seeking to have a bankruptcy order annulled. Issues included the petitioning local authority’s defective service of the statutory demand and petition, defective certificates of service and substantive defects in the petition

Re: Bertram-Gregory: instructed by the petitioning creditor, successfully opposing the debtor’s assertion of a cross demand.
BAC Florida Bank –v- T; BAC Florida Bank –v- G: instructed by a U.S. bank in a series of cases successfully enforcing mortgage deficiency judgments of the Circuit Court for Polk and Orange Counties, Florida, U.S. The debtors borrowed money to purchase property in Florida which significantly devalued in 2008. The debtors unsuccessfully sought to rely on Adams-v-Cape Industries to challenge jurisdiction and set aside statutory demands

Kanagasooriyan-v-Yogarajah: successful challenge to an IVA by revocation of the creditors’ approval pursuant to s.262 Insolvency Act 1986. Creditor establishing material irregularities;
1) false statements made by the debtor in his proposal; and
2) defective service of the notice of the creditors’ meeting. Service on a creditor’s solicitors in the underlying commercial litigation was not good service as they had not been expressly authorised to accept service

Working under partner supervision at Freshfields Bruckhaus Deringer LLP:
Astra Zeneca UK Ltd-v-Revenue & Customs Comrs (Case C-40/09) [2010] STC 2298 (Court of Justice of the European Communities)

Global energy co.-v-State energy co. – arbitration

Office of Fair Trading-v-Hays Specialist Recruitment (Construction Recruitment Forum Case CE/7510-06)

What solicitors say

Michael Culver TEP CTAPS
Partner and Head of Wealth and Estate Planning Team at Bolt Burdon Solicitors
“Toby is an excellent advocate and strategic litigator and I would not hesitate to recommend him for Contentious Probate work.”

Ben Hillman
Senior Associate and head of Real Estate litigation at Kingsley Napley LLP
“Outstanding. Somebody to look out for in the future. Proactive and excellent at complex disputes. Great manner in front of Judges and clients alike.”

Natasha McKeever
Associate Solicitor at Bolt Burdon
“Toby is an excellent barrister and I could not recommend him enough. He always goes the extra mile and is on hand whenever you need him.
He has a great eye for detail and has a practical approach to cases.
He has a calming manner and no matter what he is faced with is in control.
Both his written work and advocacy skills are impeccable. “

Sarah-Kate Jackson
Partner at Grant Saw Solicitors LLP
”Toby is a pleasure to work with. He has always provided clear and accurate advice. Tactically sound and commercially aware, I wouldn’t hesitate to recommend him.”

Emily Leadbeater
Consultant Solicitor at DF Legal LLP
“Toby has an eye for detail and is meticulous in his work. I would not hesitate to recommend Toby”

Seminars

October 2016 – Waiver and Relief Against Forfeiture, Enforcing Covenants Seminar, the Junior Property Litigators Series

October 2016 – Costs and Enforcement in Short Residential Leases, the Junior Property Litigators Series

October 2016 – Mock Trial – Inheritance Act Claims by adult child and co-habitee

October 2015 – The Effective Use of Break Clauses, the Junior Property Litigators Series

October 2015 – Mock Trial, Insane Delusions and Testamentary Capacity

October 2014 – Notices, Pleadings and Common Mistakes, the Junior Property Litigators Series

November 2014 – Chair the Business Tenancies seminar, the Junior Property Litigators Series

If you wish to discuss upcoming property, inheritance and estates seminars please contact adam.lewis@fieldcourt.co.uk

Education
  • Bar Vocational Course Grade: Outstanding
  • Middle Temple Prize for Outstanding Achievement in the BVC
  • Harmsworth Scholar of the Middle Temple
  • Advanced international advocacy course, Keble College, Oxford
  • Freshfields Bruckhaus Deringer LLP – Dispute Resolution Department – 3 years
Professional memberships
  • Property Bar Association
  • Chancery Bar Association
  • ACTAPS associate member
Interests

Toby lives in Bristol and London. Before being called to the bar he was a cabinetmaker making bespoke fine furniture for public and private collections. He trained under Petter Southall of i-tre furniture in Chilcombe, Dorset. When not working Toby will be skiing, surfing, cycling or making furniture in the shed.