“He is on top of all the detail and thoroughly fights his client’s case in court.”Legal 500, 2016
“His advocacy and client-handling skills are extremely good.”Legal 500, 2016
- BA Hons (2.1) in Law, University of Kent in 1973
- College of Law, Bar Examinations and Called to the Bar (Middle Temple) in 1974
- Tenant at 3 New Square, Lincoln’s Inn from 1976 until 2001
- Served as an elected member of the Bar Council 1987-1993; also served on the Professional Conduct Committee of the Bar Council circa 1993-1995
- Became an associate member of Pallant Chambers in or about 1997
- Appointed to Silk in 1996
- Appointed Assistant Recorder in 1998, and Recorder in 2000
- Admitted as a Fellow of the Institute of Arbitrators in 1999, and accredited as a Mediator by the Institute in 2002
- Joined Enterprise Chambers, 9 Old Square, Lincoln’s Inn in 2001, serving as Head of Chambers from 2003 – 2012
- Elected a Bencher of The Middle Temple in 2002
- Left Enterprise Chambers to practice as a full member of Pallant Chambers in 2017
- Member of the following professional associations:
– The Chancery Bar Association
– The Property Bar Association
– The Professional Negligence Bar Association
– The Association of Trust and Probate Specialists
- VAT: 234685056
Called in 1976 and appointed Queen’s Counsel in 1996, Bernard has been in practice at the Chancery Bar for over 40 years. Whilst he has gained extremely broad and varied experience across the whole field of both General and Commercial Chancery practice areas, his main specialisms have been in the fields of Company law, Property, Commercial disputes and Professional Negligence.
For the past several years the main focus of Bernard’s practice has been in:
- Shareholder and boardroom disputes, including minority shareholder rights, deadlocks, breaches of fiduciary duty by directors and disputes concerning the rights to legal and beneficial interests in shares
- All manner of real property disputes, including restrictive covenants over land, easements, securities for the repayment of debts charged on land and the enforcement of legal and equitable interests
- The enforcement of or limits on rights arising under constructive trusts and the application of the doctrine of proprietary estoppel
- Enforcing, protecting or limiting the contractual rights of parties to commercial contracts where there has been a breakdown in relations between contracting parties
- Acting for claimants who assert themselves to have been “failed” by professional advisors (mostly solicitors, but also extending to accountants and tax consultants) by their breaches of professional duty
Bernard also continues to undertake Private Client work, acting for trustees and beneficiaries of high value trust funds especially where issues arise as to the performance of trustees’ fiduciary duties and the rights of beneficiaries both to hold them to account and to require information.
Bernard is also an acknowledged expert in the law of Clubs and Unincorporated Associations, with a wealth of practical experience in the appropriate governance of Clubs, whether (or not) they should seek the protection of incorporation, and reviewing incorporation deeds and other documentation.
Bernard is accredited by the Chartered Institute of Arbitrators both as an arbitrator and a mediator, and has over the years acquired a deep experience of both.
The majority of the arbitrations and mediations in which Bernard has been appointed have involved disputes arising within his practice areas, but he has also enjoyed arbitrating contractual and disciplinary disputes between players and Clubs affiliated to the Football League, and between the Clubs themselves and the Football League.
Bernard has had the advantage of serving as a non-executive director both of a fully listed public company and of private companies. This has provided him with a wealth of practical experience of the workings of boards of directors and of the governance of companies which has stood him in good stead when advising both boards of directors and shareholders and other stakeholders.
Recent disputes in which Bernard has acted have involved (amongst others) disputes between:
- 50%/50% shareholders with equal board representation focussed on the prejudicial actions of one side, which was also a supplier to the jointly owned business, to the prejudice of the other. Bernard acted for the complainant petitioners in a multi-aspect dispute covering some 20 separate issues which occupied some 30 days of court time and resulted in 3 reported judgments and in a very substantial amount of compensation being paid to his clients
- Shareholder/directors of nursing homes accused by minority shareholders of breaches of fiduciary duty by acquiring a further nursing home in their own names and then buying out the minority shareholdings without giving credit for the value of the business opportunity taken in their own names
- Director/shareholders who had acquired certain other minority shareholdings but who sought to object to the sale of other shareholders’ shares to a 3rd party of whom they did not approve and resisted the subsequent registration of those shares on the ground that they were sold in breach of binding rights of pre-emption
- A father (on the one hand) and his two sons (on the other) in which the father asserted that his two sons had wrongfully deprived him of a shareholding in a new company which he claimed to be jointly owned and which involved a close investigation of the manner and basis on which the new company was incorporated and of the agreements between and involvement of the 3 family members in the business. The company’s accountants were also joined and sued for breaches of professional duty, and the trial lasted for over 20 days
As an indication of his recent activity in this area, in the past 2 years alone Bernard has fought the following substantial property disputes:
- Leading Pallant Chambers’ Tom Worthen, successfully defending a claim brought by a son against his father for ownership of or a proprietary interest in the property occupied by the son and his family
- Successfully asserting the rights of a lady whose case was that she had been persuaded to transfer both a number of properties and all her shares in a property management group to a confidante who promised to re-convey them to her on demand and then asserted himself to be the sole beneficial owner. The case involved consideration of both constructive and resulting trusts, misrepresentation, and the principles of undue influence
Substantial cases in which Bernard has been involved in the immediate past include:
- Acting for the claimant in his claim for damages against a nationally known betting chain arising from their alleged failure to develop and market a new betting system which had been devised by the claimant company, the trial of which lasted some 20 days
- Acting for the Members of The Queen’s Club in their claim against the Lawn Tennis Association to a proprietary interest in the assets of the Club when the LTA put it up for sale, and which ultimately (immediately before a 15–20 day trial was due to commence) resulted in an honourable settlement which enabled the Members to purchase the Club on affordable terms
- Acting in 3 separate actions for claimant Independent Financial Advisors who had each been persuaded to transfer their practices to a well-known subsidiary of a nationally known insurer on the basis of promises given both about the financial benefits of doing so and the service and regulatory advantages they would gain from the transfer, and who successfully counterclaimed for very substantial damages for fraudulent misrepresentation and breaches of warranty when it emerged that those promises were false
- Leading 3 juniors, currently acting for the liquidators and administrators of companies who assert themselves to have been defrauded by directors who (in turn) transferred the companies’ assets to third party fraudsters who were in their turn also defrauded. In this action the SFO has acted to appoint receivers of the assets, which are also claimed by several other claimants who will be fighting to establish priority over Bernard’s client companies’ claims
Bernard’s wealth of experience in each of these areas results in him continuing to be consulted from time to time both by trustees and protectors of substantial trusts who are anxious to protect their positions by being seen to have acted in accordance with their powers and duties and by beneficiaries of such trusts who are anxious to hold their trustees and protectors to account.
Bernard is also currently acting for the defendant daughter/executrix of a deceased whose estate is faced by a claim under the Inheritance (Provision for Family and Dependants) Act 1975 by an elderly claimant seeking reasonable financial provision for his maintenance. That claim has so far been successful, but is shortly to be determined (exceptionally) on a 2nd appeal to the Court of Appeal, which has given leave for the 2nd appeal because of the unusually important issues raised by it.
Over the past 5 years or so Bernard has acted for claimants in claims for damages for professional negligence against:
- Solicitors and accountants who after 14 days in court ultimately accepted that they failed in their duty to the claimant by allowing him to complete a management buy-in without checking that the working capital position was normalised at the time of completion, thereby committing him to complete his purchase of the target company at a time when it had a severe and unintended debt position which left it undercapitalised and later led to its insolvency
- Solicitors who were asserted to have failed to advise their nursing home proprietor clients that it was a breach of their fiduciary duties as directors not to give the company of which they were directors the benefit of a commercial opportunity to acquire another nursing home, and who as a result wrongly failed to account for the benefit they took for themselves when acquiring the shares of other minority shareholders
- Accountants who were asserted to have failed in their duty to Bernard’s client in circumstances where his sons procured (through the agency of the accountants) the transfer of the whole of the shares in a company which the father claimed should have been jointly owned and in which he should have been an equal shareholder with them
- Tax advisors who are asserted in a claim recently issued to have failed (inter alia) to advise their “non-dom” client about ways and means of ensuring that monies invested by an off shore trust company in UK commercial properties would not be regarded by HMRC as deemed remittances taxable on him personally and further failed to ensure that tax on the income from those properties was assessed on the trust company and not on him personally. As a result of their advice the client was wrongly assessed to tax liabilities which fell on him personally and which he was unable to pay from his own resources, resulting in him being declared bankrupt. The client is pursuing a seven-figure claim for damages
In addition to long and deep experience of his own as a trustee of The Hurlingham Club in West London, Bernard has developed a practice which results in him being regularly consulted by The Queen’s Club and other member and proprietary clubs for advice on governance and other practical issues.
In the past Bernard advised a number of small “garden square” proprietary tennis clubs about the renewal of 99 year leases which expired in and after the 1980s and 1990s in circumstances where contact had long been lost with the original shareholders and their successors, the clubs had for decades been run as if they were members’ clubs, and it was not clear how, to whom, or in what manner any renewal leases should be issued.
More recently Bernard has advised (both formally and informally) a number of members’ clubs about the advantages and disadvantages of incorporation, and has reviewed and approved the necessary Company law steps leading to incorporation of an HoldCo to hold the assets and an OpCo to take over the day to day management and the deeds of transfer of the assets and liabilities to the new structure.