Nicholas Preston (1986)

Nicholas Preston (1986)

Membership Status: Barrister - Full Member Qualified in 1986 Public Access Accredited

Profile

General Information

Gray’s Inn Barrister 1986, Advocate (Scotland) 1999.

Specialist areas of practice:

Insolvency
Consumer Credit
Scots Law
Member of the Chancery Bar Association

Particulars of experience:

Commercial and litigation experience as self employed barrister, with city firm of solicitors, in commerce with a bank and finance company and with insolvency practitioners.

Insolvency:

Corporate and personal (including licensed access), challenging validity of security and appointment of administrative receiver, events of default in loan documentation with personal guarantees, investigating antecedent transactions, recovering company property, prohibited names, retention of title, directors’ disqualification, pre-emptive remedies, restraining presentation of winding up petition, defended winding up petitions, contributories petitions, security for costs, disclaimer, distress, application for sale of property, insolvency practitioners’ compliance and cross-border element, jurisdictional forum.

  • Advised in defence of proceedings brought by Secretary of State for the removal of an insolvency practitioner from approximately fifty cases resulting in settlement and avoidance of significant costs.
  •  Obtained order for freezing injunction and court appointed receiver in relation to phoenix company, and restored control.
  • Assisted in Oakley Smith v Greenberg [2002] EWCA Civ 1217, [2003] BPIR 709 CA, creditor outside CVA proposed by administrator; should be treated in same way as CVA participants.
  • Truex v Toll [2009] EWHC 396 (Ch) Proudman J; [2009] All ER (D) (Mar); 4 All ER 419 Bankruptcy; meaning of liquidated debt.

Consumer credit:

Regulated and unregulated, sale of goods, supply of goods and services, unsatisfactory quality, rejection, leasing, enforceability, prior title claims, conversion, bailment, penalties, mitigation, insurance, registration of charges, data protection, credit hire, distress, suretyship (undue influence) and unjust enrichment.

  • Drafted regulated and unregulated contracts for finance companies under the public access provisions.
  • Lombard North Central v. Gate [1998] CCLR 51, Chitty 28th ed. paras. 38-064 note 9 & 38-431 note 78,
  • Goode: Consumer Credit Law & Practice I 31.113 – dealer as agent of finance company.  Effect for finance industry; prevents guarantors from relying on representation made by dealers, so as to avoid unnecessarily protracted litigation.
  • Lombard North Central v. Power-Hines [1995] CCLR 24, Halsbury’s Laws vol. 9(1) para. 314 note 3,
  • Goode: Consumer Credit Law & Practice I 45.19 – service of default notice.
  • Effect for finance industry; lender can be sure that proceedings are properly issued whether default notice received or not, thus saving substantial costs because spurious defence is stopped.
  • Kuwait Petroleum Corporation Ltd v Brake Bros Food Services Ltd: Lawtel AC0123265 Credit hire period.

Company:

Directors and shareholders’ disputes, unfair prejudice, derivative action, joint venture disputes, restoration to the register and validation orders.

Advised on multi-million pound venture capital dispute avoiding proceedings being issued.
 
Professional negligence: accountants, insolvency practitioners, solicitors and surveyors.

  • Advised private individual in action against accountants and solicitors for negligent execution of security documentation and subsequent liquidation of company for claim of £1,000,000, co-ordinating expert evidence from Deloitte & Touche over a period of three years resulting in settlement.
  • Advised private individual in action against supervisor of individual voluntary arrangement for negligence resulting in saving of home.
  • Advised in defective transfer by solicitors of several hundreds of leases in company acquisition.

Commercial arrangements:

  • Company share sale, agency agreements, and partnership.
  • Advised directors of group company on share sale agreement.
  • Advised suspended member of the Institute of Chartered Accountants Scotland on dissolution of partnership and restoration of practicing certificate.
  • Assisted in acquisition of hotel group involving Scots-English cross-border element.
  • Advised on medical practitioner’s dispute of drawings from partnership.
  • Advised on ultra vires of company.

Personal guarantees:
Validity of execution.

Scots Law:

  • Acted in disputed licensing agreement in arbitration proceedings in Scots law.
  • Drafting unjust enrichment defence in Scottish proceedings.
  • Advised debtor in bank guarantee, resulting in bank withdrawing proceedings.

Estate Agents:

  • Commission disputes.
  • Misrepresentation and exclusion of liability.
  • Property misdescription defence of due diligence and compensation under Property Misdescription Act 1991.
  • Duties of auctioneers.

Property:

  • Mortgage fraud: Mortgages 5 Ltd v Gould & Others [2009] EHWC 2116 (Ch) 11/8/2009 Lawtel AC0122145, validity of mortgage where property not transferred.
  • Rights of way and easements.
  • Private nuisance neighbour disputes.
  • Equitable interests; co-ownership disputes under Trusts of Land and Trustees Act 1996.

Wills and Probate:

  • Defended claim for removal of personal representative.
  • Advised on the effect of charging order on joint tenancy of deceased.
  • Drafted proceedings in contested will by undue influence.

Employment:

  • Unfair dismissal, redundancy and discrimination.
  • Acted for employer in sexual orientation claim.

Other:

Appointed examiner for taking evidence in foreign proceedings pursuant to the Evidence (Proceedings in Other Jurisdictions) Act 1975 for litigation in Texas USA.
Former member of the disciplinary committee of the Council of the Inns of Court.
Crime: road traffic.

 

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Publications

Reported cases:

•Atkinson v. DPP [2004] 3 All E.R. 971 Jurisdiction of Magistrates Court.

•DPP v. Ayres [2004] EWHC 2553 (Admin.) Absence of skeleton argument is not abuse of process in criminal proceedings.

Published articles:


“Toad and the Chief Weasel drive north of the border.” Middlesex Law Society Magazine Summer 2007 page 5.  A comparative study of English and Scottish criminal procedure in the form of a drama.
 
“‘I bought the car from a friend’ Essential title checks for buyers of cars.” Middlesex Law Society Magazine Summer 2006 page 29. Update of guide for sellers and buyers on innocent private purchaser defences to avoid unnecessarily releasing or claiming title.

“Know the rights of your Scot debtor”. Credit Today August 2004 page 19.
Human Rights and insolvency in Scotland.

“Posting notices is sufficient.” Credit Today July 2001 page 17.
Comment on LNC v. Power-Hines – No provision as to time in section 87 of the Consumer Credit Act 1974.
 
“When the partnership goes bust.” Credit Today June 2001 page 27.
Creditors’ perspective of options for insolvent partnerships.
 
 “Cars and purchasers, essential title checks.” Credit Finance February 2000 volume 2 issue 15 page 24.
A guide for lenders on innocent private purchaser defences to avoid unnecessarily releasing or claiming title.

“Used car liability, proposal for industry ‘expectation of mechanical reliability’ guide.” Credit Today February 2000 pages 16 & 17.
An invitation to the car manufacturing industry to agree on a standard of durability in order to save costs of litigating with minimal judicial precedent.

 

 

 

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