Nicholas Preston (1986)

Nicholas Preston (1986)

Membership Status: Barrister - Full Member Qualified in 1986 Public Access Accredited
Bar Standards Board - Regulating Barristers
Barristers in England and Wales are regulated by the Bar Standards Board

Profile

General Information

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

Member of the Chancery Bar Association, participant in the Chancery Bar Litigant in Person Scheme (pro bono) (CLIPS)

Former member of the Disciplinary Committee of the Council of the Inns of Court

Public access accredited

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 45.19service 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, validation orders and registration of charges.

Professional negligence:

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-coordinating 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.

Advised on whistleblowing.

Estate Agents:

Commission disputes: effective cause, misrepresentation and exclusion of liability, Consumer Rights Act 2015, property misdescription defence of due diligence and compensation under Property Misdescription Act 1991, duties of auctioneers, and Control of advertisements: Town and Country Planning Act 1990.

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, equitable interests; co-ownership disputes under Trusts of Land and Trustees Act 1996.

Wills and Probate, contentious and non-contentious:

Validity of wills including undue influence.

            Defended claim for removal of personal representative.

Advised on the effect of charging order on joint tenancy of deceased.

Regulatory

Reviewer and advisor for the national pro bono unit.

Other

Private nuisance neighbor disputes, statutory nuisance, UCTA, judicial review, employment and personal injury.

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.

Current position:

Self-employed Barrister with Clerksroom 2004 to date.

Previous positions:

Self-employed Barrister with BarristerWeb and Advocate at the Faculty of Advocates 2003-04.

Employed Barrister at Stockler Brunton solicitors London 2001-02.

Self-employed Barrister at 3 Temple Gardens 1993-98 and 8 Bell Yard 1998-2001 and Advocate at the Faculty of Advocates 1999- 2001.

Compliance Officer at J.W. Papi & Co Insolvency Practitioners London 1990-93.

Legal Advisor Lombard Tricity Finance Limited (Nat West Group) London 1989-90.

Legal Advisor Lloyds Bank plc London 1988.

Secondary school teacher 1981-84.

Education and Training:

Certificate in Regulatory law, Aberdeen University 2017.

Devil to Andrew Stewart (standing junior Counsel to the Department of Trade and Industry now Lord Stewart of Ericht) at the Faculty of Advocates Edinburgh Scotland.

Pupil Barrister of Andrew Hochhauser in the Chambers of Andrew Rankin Q.C. 218 Strand London.

Pupil Barrister of John Harwood-Stevenson in the Chambers of Gilbert Gray Q.C. 4 Paper Buildings Temple London.

MA Business Law, City of London Polytechnic (part-time) 1990.

Inns of Court School of Law, Bar examination 1986.

Diploma in Law for the Bar, Polytechnic of Central London 1985.

Postgraduate Certificate in Education, Bristol University 1981.

BA Classics, London University 1980.

Testimonials

Testimonials

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Areas of Law

Nicholas Preston (1986) is happy to accept instructions as counsel who is:

  • Business & Commercial Law
  • Approved for the following panels:
  • Business & Commercial Law
  • Consumer Contracts
  • Court of Protection
  • Inheritance Act Claims
  • Personal Injury
  • Professional Negligence
  • Professional Regulation
  • Property
  • Public & Administrative Law
  • Road Traffic
  • Wills & Probate

Outside of these key areas of law, Nicholas Preston (1986) is always willing to consider any enquiry requiring the experience or knowledge needed to help you or your client. Please call Nicholas direct or the support team on 01823 247 247 if you would like to discuss any aspect of this profile.

Cases and 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.

 

 

 

Fees and Feedback

Fees and Feedback

Details regarding our approach to fees can be found at the following link:  http://www.clerksroom.com/content-html?cid=336

SERVICES:

Please see “profile” tab for description of the legal services provided by this barrister.

We aim to complete and return all paperwork within 14 days (2 weeks) of receipt if no specific deadline is provided. We can work to much faster timescales if requested or we can agree a specific target date for each individual circumstance. We will always advise at the outset if counsel is unable to meet any deadline.

Each barrister has a standard hourly rate for their work. The individual hourly rate can be agreed when instructions are acknowledged if preferred. We welcome early discussion as to the suitability of a specific barrister for a specific case. The right barrister will have the relevant expertise to deal with the case but will not be too junior, or too senior depending on the complexities.

We aim to allocate all cases to the correct level of experience & seniority which we believe will prove most to be the most cost effective solution for our clients.

If, due to urgency, we allocate paperwork to a more senior member of Clerksroom, we will charge the appropriate hourly rate for the work, not for the barrister. We welcome early discussion to ensure the correct fee is applied to the case at the outset.

REDRESS:

All our barristers are regulated by the Bar Standards Board (BSB) and hold a current practising certificate, details can be found at the following link Barristers’ Register

Complaints information

If you are not satisfied with the service provided, you can make a complaint to Chambers. Information on the chambers’ complaints procedure is available at the following link: http://www.clerksroom.com/content-html?cid=416

If you are not satisfied with the response you receive from my chambers, you can make a complaint to the Legal Ombudsman. You must contact the Legal Ombudsman either within 6 months following the conclusion of our handling your complaint, within 6 years from the date of the act/omission, or 3 years from the date that you should reasonably have known there were grounds for complaint (if the act/omission took place before the 6 October 2010 or was more than six years ago).

The Legal Ombudsman’s details are as follows:

Legal Ombudsman
PO Box 6806
Wolverhampton
WV1 9WJ
Tel: 0300 555 0333
Email: enquiries@legalombudsman.org.uk
Web: www.legalombudsman.org.uk

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Privacy Notice

Privacy Notice

Privacy Notice
PRIVACY NOTICE

1.              This is a privacy notice that describes how, why and for how long I will process or keep your personal data in accordance with the General Data Protection Regulation (‘GDPR’).

2.              The GDPR governs how an individual’s personal data is used, and your rights in relation to that data.

3.              I, Nicholas J. H. Preston, have been instructed by you or your litigation friend (usually a parent), through your solicitor or agent, or via the Bar Pro Bono Unit.

4.              It is necessary for me to process your personal data in order for me to provide you with legal services, for example:

·   Advise on the prospects of litigation;

·   Advise on the value of your claim;

·   Representation at a court hearing;

·   Representation at trial;

·   Advise, review or comment on legal issues or evidence.

5.              Processing means anything done to data such as: recording, organising, adapting, altering, copying, consulting, transmitting, combining, erasing or storing it.

6.              The processing for the purposes listed above will take place in accordance with either Article 6(1)(a) GDPR or Article 6(1)(b) GDPR, depending on how you instructed me.

7.              If you have instructed me on a direct access basis, or engaged a solicitor (or legal agent), to assist you in bringing or defending a claim then the processing is necessary to perform a contract to which you are a party (Article 6(1)(b) GDPR). To give effect to that contract (i.e. to bring a claim) it is necessary for me to process your personal data for litigation purposes.

8.              If I am assisting you on a pro bono basis, it will be necessary for me to seek your consent to be able to represent you (Article 6(1)(a) GDPR). In this scenario, you will be sent a consent form.

Recipients of your data

9.              I may also be required to share your data with others, depending on the nature of your case. This may include:

(i)                  Courts and other tribunals to whom documents are presented;

(ii)                Your solicitors, or agent representing you, through whom I have been instructed;

(iii)               Potential witnesses, experts and other persons involved in the case;

(iv)               Solicitors, barristers, or other legal representatives;

(v)                Ombudsman and regulatory authorities;

(vi)               Education and examining bodies; and

(vii)             Current, past or prospective employers.

 

Special Categories of Data

10.          In some cases I will have been given your personal data that is within the ‘special categories’ of data described in GDPR Article 9(1). For example, personal data that reveals your race, ethnicity, sexual preferences, political or religious beliefs, trade union membership or health. There are also restrictions for processing information regarding criminal convictions.

11.          This type of personal data will only be processed where it is necessary in order to represent you in your legal claim, or advise on the prospects of a legal claim.

 

Retention

12.          I will retain your personal data for no longer than is necessary, and where it is possible, I will anonymise your data.

13.          How long your personal data is kept will depend on a number of factors. The retention period will be reviewed when the service I am providing you with is complete. However in general, I am obliged by the Bar Code of Conduct to retain records of my cases, and by HM Revenue and Customs to retain records for 6 years.

14.          Once your case has concluded and fees have been paid, I shall retain only the personal data necessary for the following purposes:

(i)                  The legal and professional obligation to retain information relating to my cases;

(ii)                To check for any potential conflict of interests that may arise in the future when I am instructed on other cases;

(iii)               For use in the defence of potential complaints, legal proceedings or fee disputes;

(iv)               To refer back to in future cases which raise similar legal, factual, or procedural issues.

15.          The processing for the purposes listed in paragraph 14 (ii), (iii), and (iv) above, will take place in accordance with Article 6(1)(f) GDPR. That is, for the purposes of legitimate interests that are not outweighed by your interests or fundamental rights and freedoms.

16.          The processing for the purposes listed in paragraph 14(i) above, will take place in accordance with Article 6(1)(c) GDPR. That is, the processing is necessary for me to comply with a legal obligation.

Your Rights

17.          Where processing of your personal data was based on your consent (see paragraphs 6 and 8) you have the right to withdraw that consent at any time. This does not affect the lawfulness of the processing based on consent before its withdrawal.

18.          Withdrawal of your consent to process such data will most likely mean that I am no longer able to provide you with the legal services you seek.

19.          You may request confirmation that your personal data is being processed by me and details about the personal data, the source, the processing, the purposes of the processing, the recipients and the retention period.

20.          You may request a copy of your personal data that is being processed by me. You may also request rectification (i.e. correction) where there are inaccuracies in the personal data.

21.          You have the right to object, on grounds relating to your particular situation, at any time, to processing of your personal data in paragraph 14 of this privacy notice. Should you object, the processing will only continue where there are compelling legitimate grounds for the processing which override your fundamental rights, freedoms and interests.

22.          Where the processing or retention of your data is necessary for the establishment, exercise or defence of legal claims, it will not be possible to object.

23.          You have the right to request that your personal data is erased where any of the following apply:

(i)                  The personal data are no longer necessary in relation to the purposes for which they were collected or otherwise processed;

(ii)                You withdraw your consent where the basis of processing was based on consent and where there is no other ground for the processing;

(iii)               Where your fundamental rights, freedoms and interests override the legitimate interests of processing in paragraph 14;

(iv)               The personal data has been unlawfully processed; or

(v)                The personal data have to be erased to comply with a legal obligation.

24.          You have the right to request that your personal data is restricted from processing, so that it is simply stored, for the following reasons: as an alternative to deletion; so that it can be corrected; for the establishment, exercise or defence of legal claims; to verify if a legitimate ground exists (paragraph 14).

25.          Where it is necessary to correct your personal data, or you have requested the restriction or erasure of your personal data, I shall endeavour to contact the recipients of the personal data, unless this involves disproportionate effort.

Security

26.          I take appropriate physical and technical procedures to safeguard your personal data to prevent it from being accidentally lost, used or accessed in an unauthorised way. The I.T. systems used by Clerksroom are ISO27001 compliant.

 

Complaints or Queries

27.          If you have any questions regarding this privacy notice, or how I use your personal data please email me: preston@clerksroom.com, or my clerks: mail@clerksroom telephone 01823 247 247.

28.          I shall aim to respond as soon as possible, and within 30 days.

29.          You have the right to complain to the Information Commissioner's Office (ICO) if you believe I have not handled your request in an appropriate manner. For information on contacting the ICO please go to: https://ico.org.uk/global/contact-us/

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