F&GP Meeting November 2017

WR I GLEY S ---- S OL I C I TOR S ----

6 October 2017

As an aside, it is also curious that the transferor is defined as two trustee companies, but doesn’t identify the trust of which they are trustees.

We could assist with an application to the Charity Commission or in settling the terms of a new transfer if need be as an additional item of work.

3. Provide our opinion on the current legal and beneficial ownership of the titles in light of the review.

The registered title is clearly wrong and legal title seems to remain with the transferor.

The position on the beneficial interest is complex. Ordinarily a failed transfer would result in the transferor holding as bare trustee for the transferee. As discussed above the transferee is not a legal person and therefore not capable of being a beneficiary either. There is sufficient evidence that the intention of the transfer was to transfer the property to "the charity" and I think that should be interpreted as to the charity trustees, so that the beneficial interest belongs to them. There are no clearly established legal authorities to this effect, but following the purpose of the principles it achieves the right outcome. A related inevitable question arising from the invalidity of the transfer is what is the position on the money paid for it? There is likely to be an argument for recovery under the doctrine of mistake. However, that is outside our agreed scope of service and more suitable for a litigator should it come to that. There is also a question of whether there has been negligence by whoever acted on the transfer. In my opinion lack of capacity of a party to a contract is fundamental and getting it wrong would be negligent. GFTUET may consider pursuing whoever acted for any losses. I would guess from the execution of the transfer by BWB Secretarial Ltd that Bates Wells Braithwaite (undoubtedly the leading charity law firm) were involved in this work at some level. However, it would be surprising if the market leading firm have got this transfer wrong. It is also surprising that the Land Registry registered it in this fashion. I doubt that any claim against the Land Registry is worth pursuing at this time.

I hope this is useful. If you would like to discuss it then please ring me.

Best wishes

Tim Wrigley Partner for Wrigleys Solicitors LLP

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