James Davin

James Davin

LLB (Hons) LLM; Higher Rights of Audience (All Proceedings) 2009 Barrister
Membership Status: Barrister - Full Member Called in 2019 Public Access Accredited BSB Guidance for Public Access Authorised to Conduct Litigation
Bar Standards Board - Regulating Barristers
Barristers in England and Wales are regulated by the Bar Standards Board

Profile

General Information

James has experience and expertise well beyond his year of Call. Prior to being Called to the Bar, James practised as a solicitor for 12 years, and as a Solicitor-Advocate for 10 years. James is a former director and owner of an SRA authorised law firm. He fully understands the needs and requirements of instructing Solicitors. Over the years, he has assisted many clients through every stage of the dispute resolution process. He is a fully accredited Civil & Commercial Mediator, and specialises in property (to include contested wills, trusts, and estates) and business disputes.  

James brings a wealth of practical knowledge and experience from his role as a Solicitor and Solicitor-Advocate to his practice at the Bar. James provides pragmatic, results focused, solution driven advice and representation. He fully understands the wider implications of a course of action, including post-dispute relationships, and the need to protect a client’s cost position.

James provides specialist mediation, advocacy, advisory, and drafting services in relation to tax and both traditional and commercial areas of chancery practice.

James has served a broad spectrum of lay clients, from those regarded as high net worth to small business owners to landlords and tenants, to beneficiaries, executors, and former cohabitees who have inadvertently become embroiled in emotionally charged disputes. He is accessible, proactive, and represents clients nationwide.

Reasons to instruct James…

  • As a former practising Solicitor, James understands the high level of service and client focused advice and representation that Solicitors expect when instructing Counsel
  • James is a specialist in resolving disputes relating to tax, property, businesses, and inheritance
  • James provides technically strong advice on complicated matters, that is both cogent and client friendly
  • James provides a prompt and efficient turnaround of paper-based instructions
  • James provides a robust, but measured approach to resolving disputes
  • James has significant specialist experience
  • James has served a broad spectrum of lay clients, from those regarded as high net worth, to small business owners, to landlords and tenants, to beneficiaries, executors, and former cohabitees who have inadvertently become embroiled in emotionally charged disputes
  • James is accessible and proactive

EXAMPLES OF RECENT CASES

  • Brady v Hannon [2022]: James successfully applied for the removal of a Personal Representative before Deputy Master Dray at a final hearing of a Part 8 claim at the Royal Courts of Justice. At earlier hearings of the same case, James successfully argued for an Order of Sale of a probate property in the estate under the authority of a Limited Grant (before Deputy Master Nurse), and for the appointment of an Independent Professional Personal Representative (solicitor) to oversee the administration and distribution of the estate at the conclusion of the proceedings (before Deputy Master Brightwell).
  • Barker & Barker v Shaw: [2022] James represented the Defendant/Appellant before Mr Justice Zacaroli in an application for an extension of time to file an appeal notice that should have been filed in 2018.
  • Hellfire Entertainment Limited v Acimar Limited [2021] EWHC 1077 (Ch): Is it always safe to assume in business that parties can freely discuss joint ventures, and that a signed contract is needed before property interests are created? Can an interest in commercial property be created following a purported oral agreement and email representations, or is a discrete written contract always necessary? In business dealings, when do discussions to acquire property lead to binding obligations? In this case, James successfully represented the Defendant/ Respondent in an appeal before the former Vice Chancellor, Mr Justice Snowden QC (as he then was), that dealt with the above questions. The case relating to the breach of a commercial property contract purportedly based on oral agreements and several emails. Arguments dealt with included unjust enrichment, proprietary estoppel, and constructive trust.
  • Certas Energy UK Limited v Gat Oil Limited [2020]: James successfully represented the Defendant/ Appellant in an appeal before His Honour Judge Godsmark QC (former Designated Civil Judge for Nottinghamshire, Derbyshire and Lincolnshire). In the appeal, James overturned a District Judge's dismissal of an application to set aside a Default Judgment. The claim was worth several tens of thousands of pounds. The matter was remitted to the County Court, and the Defendant/ Appellant was allowed to defend the claim.
  • The Law Society v Dua et al [2020] EWHC 3528 (Ch): James assisted the successful Defendant litigants in person to prepare for a complex trial before Mr Hugh Sims QC (sitting as a Deputy Judge of the High Court). The case involved the recovery of historic debts worth several hundreds of thousands of pounds. The family home, and several other properties, faced an Order for Sale. Complicated issues were at stake including res judicata, abuse of process, enforcement of judgment debts against the beneficial interest in the marital home, and the protection afforded by a Trust Deed. The Claimant’s application for an Order for Sale of several properties worth more than approximately £3,000,000.00, was dismissed, together with the claim.

PRACTICE AREAS

Revenue Law

James has a broad advisory and litigation practice which covers all major areas of UK revenue law, but with a particular focus on capital gains tax and inheritance tax.

Land & Property

James is instructed by landowners, landlords and tenants (commercial and residential), developers, corporate bodies, local authorities, social housing providers, and owner-occupiers, in all aspects of land and property law. His experience includes (but is not limited to) cases involving the following:

  • Commercial and residential landlord & tenant 
  • Trusts of Land e.g TOLATA, co-ownership disputes, proprietary estoppel claims, equitable accounting and equitable exoneration claims, resulting trusts, constructive trusts, commercial “joint ventures” (Pallant v Morgan trusts)
  • Estoppel and equitable rights e.g. proprietary estoppel
  • Building and construction disputes
  • Property development & development rights
  • Conveyancing disputes e.g. contracts of sale, options, rights of pre-emption 
  • Mortgages, charges, charging orders and securitisation
  • Restrictive covenants e.g. construction, enforcement
  • Overage agreements 
  • Business tenancy renewals
  • Property torts e.g. trespass, nuisance (noise, lights, smoke, unpleasant odours, water contamination)
  • Registration and rectification of the Register (Registered & Unregistered Land)
  • Third-party walls
  • Adverse possession, boundaries & easements e.g. rights of way, rights of light, rights of drainage, rights of support
  • Village greens, commons & manorial rights
  • Rent reviews and service charge disputes
  • Leasehold enfranchisement

Inheritance Act Claims

  • Representing spouses, cohabitees, dependants, and adult children claiming against estates
  • Representing personal representatives and defendant beneficiaries in resisting claims
  • Advising on lifetime planning in anticipation of post-death claims by adult children or former spouses
  • Applications for extensions of time to submit claims and for interim orders
  • Applications for orders giving effect to compromise agreements to obtain favourable tax treatment
  • Applications under the anti-avoidance provisions for orders to secure financial contributions from third parties who received gifts of monies or other assets from the deceased during their lifetime

Probate & Estate Administration

  • Breaches of trust and fiduciary duty
  • Applications to pass over, substitute and remove personal representatives
  • Drafting documents relating to all stages of proceedings including settlement agreements and Tomlin Orders
  • Drafting caveats, citations, warnings, appearances, and subpoenas to produce testamentary documents
  • CPR Part 57/ Part 64 applications for personal representatives and trustees e.g. applying for an order for a trustee to supply accounts with contingent order for their removal subject to the contents of the supplied accounts, applications for the examination of persons with knowledge of testamentary documents
  • Applications to revoke grants of representation
  • Advising on gifts made donatio mortis causa
  • Applications under the Variation of Trusts Act 1958 e.g. so that minor beneficiaries, unborn beneficiaries or unascertained beneficiaries (such as future spouses) can benefit from an estate
  • Claims relating to proprietary estoppel and constructive trusts
  • Advising on duties and actions available to personal representatives on powers, duties and costs risks both in relation to ongoing litigation and more generally
  • Claims relating to Intestacy
  • Devastavit claims against personal representatives who have purportedly mismanaged an estate or squandered assets
  • Directions applications for personal representatives
  • Applications to prove copy wills, codicils and holograph wills
  • Claimant and defendant third party claims against estates
  • Interim applications e.g. pre-emptive costs orders, injunctions, disclosure orders

Trusts

  • Applications under the Variation of Trusts Act 1958 e.g. so that minor beneficiaries, unborn beneficiaries or unascertained beneficiaries e.g. future spouses, can benefit from a trust
  • Advising and representing charitable trustees and beneficiaries
  • Challenges to the validity of trusts
  • Rectification and construction of trusts
  • Drafting wills, trusts, deeds of variation, deeds of appointment and advancement and trustee indemnities
  •  Advising on inheritance tax and the taxation of trusts
  •  Advising on restructuring or termination of will trusts and settlements
  • Applications for orders to protect trustees on incurring litigation costs or protect trustees on distribution
  • Applications for trustees to account for trust property, tracing of assets, self-dealing and equitable assignment
  • Actions against trustees following breaches of trust, breaches of the statutory duty of supervision following delegation or losses arising from trustee investment
  • Applications for the removal of incapacitated, unfit, or bankrupt trustees
  •  Advising trustees on powers, duties, and costs risks both in relation to ongoing litigation and more generally
  •  Advising on personal injury trusts

Wills

  • Challenges to the validity of wills based on various heads of claim including lack of due execution, lack of capacity, fraudulent calumny, undue influence or lack of knowledge and approval
  • Rectification and construction of wills
  • Advising on challenges to mutual wills, ademption, abatement, lapse, forfeiture or other failures of gifts and intestacy

Business & Commercial Law

James has assisted many clients through various stages of business and commercial disputes. He understands the hidden costs of these disputes and aims to bring successful closure as swiftly and economically as possible.

  • Disputes relating to directors, shareholders, and partners
  • Breach of contract
  • Debt and insolvency

Civil & Commercial Mediation

James is a fully accredited Civil & Commercial Mediator and specialises in cases relating to tax, property, wills, trusts, probate, and businesses. His expertise is balanced by a grounded approach that clients can relate to. He can add real value to the dispute resolution process. 

MEMBERSHIPS

  • Inner Temple
  • Chancery Bar Association 
  • Revenue Bar Association
  • Chartered Institute of Taxation (student member)

EDUCATION

  • LLB (Hons)
  • LLM (Research-based)
  • PGDip Legal Practice
  • Admitted as a Solicitor (2007)
  • Solicitor-Advocate (2009)
  • Advanced Certificate in the Administration of Estates (STEP)
  • Called to the Bar (Inner Temple) (2019)

Cases and Publications

RECENT CASES

  • Hellfire Entertainment Limited v Acimar Limited [2021] EWHC 1077 (Ch): James successfully represented the Defendant/ Respondent in an appeal before the Vice-Chancellor, Mr Justice Snowden (as he then was). Interesting case relating to the breach of a commercial property contract purportedly based on oral agreements and several emails. Arguments dealt with included unjust enrichment, proprietary estoppel, and constructive trust.
  • Certas Energy UK Limited v Gat Oil Limited [2020] (unreported): James successfully represented the Defendant/ Appellant in an appeal before His Honour Judge Godsmark QC (former Designated Civil Judge for Nottinghamshire, Derbyshire and Lincolnshire). In the appeal, James overturned a District Judge's dismissal of an application to set aside a Default Judgment. The claim was worth several tens of thousands of pounds. The matter was remitted to the County Court, and the Defendant/ Appellant was allowed to defend the claim. 
  • The Law Society v Dua et al [2020] EWHC 3528 (Ch): Assisted the successful Defendant litigants in person to prepare for a complex trial before Mr Hugh Sims QC (sitting as a Deputy Judge of the High Court). The case involved the recovery of historic debts worth several hundreds of thousands of pounds. The family home, and several other properties, faced an Order for Sale. Complicated issues were at stake including res judicata, abuse of process, enforcement of judgment debts against the beneficial interest in the marital home, and the protection afforded by a Trust Deed. The Claimant’s application for an Order for Sale of several properties worth more than approximately £3,000,000.00, was dismissed, together with the claim. 

Fees and Feedback

FEES:

Details regarding our approach to fees can be found at the following link:  http://www.clerksroom.com/content-html?cid=514

SERVICES:

Please see “profile” tab for a 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

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, James Davin, 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: james.davin@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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