Clerical Error across the Border: Application of the English Law of Rectification to Irish Will: Kelly v. Brennan [2020] EWHC 245 (Ch)
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“His advice is always spot-on, clear and concise. He makes it all seem so easy.”
Michael Bowmer is a commercial chancery practitioner specialising in commercial dispute resolution at its intersection with traditional chancery areas, such as, trusts, succession, property, company, insolvency and partnership law.
Michael’s practice has at its core an expertise in claims against professionals, such as lawyers, accountants, financial advisors, insolvency practitioners, planning consultants, auctioneers, valuers and quantity surveyors, and those who owe fiduciary duties to others, such as directors, trustees, partners and agents.
Michael was awarded Professional Negligence Junior of the Year at the Chambers & Partners Bar Awards 2023 and was nominated for Professional Negligence Junior of the Year 2022. He is ranked as a Leading Professional Negligence Junior by the directories and described as “Extremely knowledgeable and approachable. Technically superb and a genuine pleasure to work with.” (Chambers & Partners, 2023). ‘Michael is a very careful practitioner. Everything he says and everything he writes down is the product of fastidious attention to the facts and to the law. Michael is a very gifted lawyer and has an innate sense of the right answer. He is a team player and has a lovely sense of lightness in the court room.’ (Legal 500, 2023). “Very good under pressure, and very good at explaining complex issues in a way that the client understands.” “He has experience beyond his call and a really comforting air about him. He’s incredibly clever and a proactive strategist.” (Chambers & Partners, 2022).
Before being called to the Bar, Michael worked for several years in fine art publishing, an experience which gave Michael an insight into the commercial concerns of clients and an ability to see things from their perspective. Michael later studied law at King’s College London where he obtained the Strand Trust Prize for the highest first class degree in his year. Michael is hands-on and approachable and combines both a rigorous approach and commercial awareness in seeking to achieve the best possible results for his clients. Michael is also an accredited mediator with a growing mediation practice, and, given his background, has a strong interest in claims involving art law and cultural property. Outside work Michael is usually to be found in an art gallery or museum, in a cinema, on a road bike or with some form of six-stringed instrument in his hands.
Michael is married with two sons and lives in Cambridge. He is a member of the Chancery Bar Association, the Commercial Bar Association, the Professional Negligence Bar Association, the Commercial Fraud Lawyers Association and the Institute of Art and Law.
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Arbitration clauses are found in all sorts of business agreements, whether commercial contracts, partnership or joint venture agreements or commercial leases. Michael acted in a major long-running international arbitration between software manufacturers as to the correct interpretation of a licensing agreement, which required the assembly and deployment of a large volume of complex expert evidence concerning the development of internet technology. Michael has also acted in a number of arbitrations between professionals, such as solicitors, doctors and veterinary practitioners, arising out of partnership disputes, and regularly advises and acts in arbitrations concerning commercial landlord and tenant matters.
Alongside his work in the area of professional liability, this is Michael’s main area of expertise with most of Michael’s work taking place in the Chancery Division in the Royal Courts of Justice or in Chancery District Registries. Michael’s practice can genuinely be described as spanning both the commercial, in the form of internal business disputes between shareholders, directors and partners, lending and insolvency, and the more traditional chancery areas of practice such as property, wills and trusts. Michael is often called upon to pursue equitable remedies such as injunctions, declaratory relief, rectification or subrogation.
Michael’s areas of practice in this field are principally the following:
Michael acts in a wide range of commercial disputes ranging from more straightforward claims for breach of commercial contracts to sale of goods claims, claims for rescission of contracts for misrepresentation, claims arising out of business or share sale agreements and warranties and claims to enforce guarantees and other security. Michael also advises in cases where the issue concerns contract formation or the true construction of commercial documents or the operation of exclusion clauses. Many of the commercial disputes in which Michael is instructed have a chancery-related element for example following the commission of a civil fraud where a proprietary claim is made in respect of the beneficial ownership of assets or where questions of rectification of documents arise. Michael is experienced in seeking injunctive relief, including freezing injunctions and other interlocutory orders under the Norwich Pharmacal and Bankers Trust v Shapira jurisdictions. Michael is also interested in claims with an international dimension.
Featured Commercial Dispute Resolution cases
“Michael Bowmer is really good at dealing with intricate legal arguments and understanding new and complex points of law.” – Chambers & Partners
“Michael is meticulous in approach, very good on law and has great judgement about cases.” – Legal 500
“Extremely knowledgeable and approachable. Technically superb and a genuine pleasure to work with.” – Chambers & Partners
“Michael is a very careful practitioner. Everything he says and everything he writes down is the product of fastidious attention to the facts and to the law. Michael is a very gifted lawyer and has an innate sense of the right answer. He is a team player and has a lovely sense of lightness in the court room.” – Legal 500
“He’s very good under pressure, and very good at explaining complex issues in a way that the client understands.” “He has experience beyond his call and a really comforting air about him. He’s incredibly clever and a proactive strategist.” – Chambers & Partners
Drawing upon his commercial chancery practice Michael has built a significant practice in the field of related professional liability. Michael’s familiarity with the underlying areas of practice enables him to deal effectively and knowledgeably with claims arising out of a very broad range of business transactions in relation to property or finance and in relation to claims arising out of conveyancing, lending, will-writing or private client matters. He has substantial experience in dealing with claims against solicitors, both in their capacity as legal advisers but also in their fiduciary and representative capacity, and against financial advisers, accountants, valuers, planning consultants and insolvency professionals.
Michael has been dealing recently with an increasing number of claims relating to property development and planning, alleged failings by trustees and other fiduciaries in investment strategy and in claims arising out of mortgage lending where there has been forgery, identity theft or some other underlying fraud.
Michael has given talks to professional indemnity insurers and panel firms on solicitors’ negligence in landlord and tenant cases and in relation to wills, trusts and probate.
Featured Professional Liability cases
Michael has acted in claims both against and for accountants in particular in relation to schemes to save inheritance tax and other tax saving schemes. Michael has recently been acting in claim against an accountant for failing to give ancillary advice to an elderly couple subscribing for shares in a business run by their son and in a claim where it is alleged an accountant advised inappropriately in relation to the surrenders of leases as a tax mitigation device.
Michael is regularly asked to advise in claims against financial advisers particularly in relation to the misselling of investments and failing to advise on the risk profile of investments in equities. Michael has recently been advising a bank in relation to various claims by investors taking out life assurance products where it is alleged the financial adviser failed to provide ancillary advice on tax implications where an investment was to be written in trust.
Advising in claims against solicitors in their professional and representative capacity is a very significant part of Michael’s practice. Michael’s commercial chancery practice lends itself naturally to claims arising out of business transactions in relation to property or finance and in relation to claims arising out of conveyancing, lending and private client matters. Michael has been dealing recently with an increasing number of claims relating to property development and planning, alleged failings by personal representatives and trustees in relation to the administration of estates or investment strategy and in claims arising out of mortgage lending where there has been forgery, identity theft or some other underlying fraud. Michael has given talks to professional indemnity insurers and panel firms on solicitors’ negligence in property and landlord and tenant cases and in relation to wills, trusts and probate.
Featured cases
Some of Michael’s other cases attesting to the breadth of his practice in this include the following:
It is frequently the case that a defective transaction involving the acquisition or disposal of an asset gives rise to a consideration of a claim against a surveyor or valuer. Michael is therefore regularly instructed in claims particularly against valuers in relation to commercial secured lending transactions. Increasingly, Michael is seeing more complex claims arising out of ongoing commercial lending relationships which have failed where the relationship was informed by valuations of commercial premises.
In one recent case Michael acted for a leading high street bank in a claim against a firm of valuers where valuations of commercial premises were relied on to lend over £2m to the new owners of a horticultural business importing produce from Africa and to continue to support the business through its initial financial difficulties. The case involved a substantial body of expert evidence in the field of commercial lending.
Michael also acted on a substantial £30M valuer’s negligence claim arising out of one of the largest commercial mortgage backed securitisations of the mid-2000s. The claim involved a £1.15 billion securitisation on the strength of allegedly negligent valuations of five landmark buildings in central London. The claim was settled during the fourth week of trial.
One feature of commercial lending cases is where funds are drawn down over time during the course of a development on the basis of certificates provided by quantity surveyors. Michael has acted and advised in a number of cases where lenders have brought claims against the quantity surveyor for negligently certifying payments as due or failing to advise that the project is no long viable within the facility which the lender has agreed to make available.
Michael is frequently instructed in cases with a planning element to them, in particular where a liability has arisen through the enforcement of planning conditions and planning obligations. He has acted in negligence claims against planning consultants in respect of the inadequate preparation of planning applications and in respect of defective planning advice concerning the need for planning permission. He is currently acting in a claim for breach of a joint venture agreement involving the development of a valuable property and in a claim concerning the impact of planning obligations concerning affordable housing.
Michael is instructed regularly to defend insolvency practitioners. Commonly such claims arise where an appointment has been terminated and new office holders are reviewing the prior conduct of the administration or liquidation. As office holders, insolvency practitioners owe fiduciary duties as well as duties of skill and care and Michael has dealt with a variety of misfeasance claims brought under section 212 of the Insolvency Act 1986 as well as negligence claims.
A particularly troublesome issue facing insolvency practitioners is the thorny question of remuneration. In one claim Michael recently acted for a firm facing substantial breach of fiduciary claims for allegedly inflating the amount of remuneration. Another difficult area is where insolvency practitioners give pre-appointment advice such as in a pre-packaged asset sale. In another recent case Michael advised on a claim where it was alleged that duties were owed to the entity acquiring the relevant assets
Michael is currently acting on a claim brought by the sole director and shareholder of a company that went into members voluntary liquidator and subsequently creditors voluntary liquidation as it appeared unlikely that it could in fact pay all its debts by the end of the 12 month period, with the shareholder complaining that if only certain steps had been taken the creditors voluntary liquidation could have been avoided.
With his background in fine art, and experience of real estate disputes, Michael has a keen interest in claims against auctioneers. He is very familiar with the legal principles applicable to claims where consignors sue auction houses, such as Luxmoore-May v. Messenger May Baverstock [1990] 1 WLR 1009, Coleridge v. Sotheby’s [2012] EWHC 370 and, more recently, Thwaytes v. Sotheby’s [2016] 1 WLR 2143, as well, as in the context of race horses, Alchemy v. Tattersalls [1985] 2 EGLR 17, but also where buyers sue auction houses such as De Balkany v. Christie Manson & Woods (1997) 16 Tr. LR 163, Thomson v. Christie Manson & Woods [2005] PNLR 38 and Avrora Fine Arts Investment v. Christie Manson & Woods [2012] PNLR 35.
In one case Michael acted for an auction house which had sold a vintage car but where there were issues concerning its title.
Michael has recently been acting on a claim against a London auction house by the owner of a flat that was consigned to the auction and sold but at a price which the consignor considered too low.
Over the years Michael has appeared as a mediation advocate in something like 50 or 60 mediations and has a deep understanding of and belief in the mediation process. Many of these mediations involved prominent mediators and, alongside the leading mediators he was able to observe through his training process, Michael has observed at first hand a variety of techniques and approaches and absorbed the need for flexibility depending on the personalities involved and the issues at stake.
Michael is convinced that mediation has an almost universal role to play in helping clients resolve their legal problems as an alternative to traditional adversarial litigation. Although there will always be rare cases which have to be resolved by litigation, Michael is a firm believer that mediation is a better and more effective way to help clients especially those caught up in bitter disputes where feelings run high. Recent research has shown that nearly one-third of people with legal problems in the United Kingdom suffer a stress-related or physical illness as a result and this underlines the benefits of resolving disputes through dialogue as opposed to confrontation.
As an accredited mediator registered with the Civil Mediation Council, Michael undertakes mediations across a wide range of disputes arising in relation to trusts, estates and succession, real property and landlord and tenant, company, insolvency and partnership law, banking and lending, and claims against professionals including directors. Recent mediations have involved claims between a company and its former directors for breach of fiduciary duty and involving a government supported funder providing businesses with cash flow support. With his experience of working in the art business before becoming a barrister, Michael is also particularly interested in mediating disputes arising in the area of art law and cultural property where sensitive and complex cultural and moral considerations, alongside difficult legal issues, can make mediation particularly appropriate.
Michael is proactive and prepared to work hard with those engaging in the mediation process to achieve positive outcomes. He adopts a flexible approach and is prepared to go the extra-mile in order to get the most of what is an important and sometimes unique opportunity to achieve a resolution.
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