Tag Archives: Chancery Division

High Court holds Swiss property options void and orders an account of rents

Uncategorized,

Padgett v Boulter [2026] EWHC 2744 (ChD): the judgment can be accessed through the following link:

https://caselaw.nationalarchives.gov.uk/ewhc/ch/2026/2744

On 26 October 2026, the High Court handed down judgment in a claim brought by the Estate of the late Mr John Porter against property developer Mr David Boulter. The judge was Caroline Shea KC, sitting as a Deputy Judge of the High Court. The Estate succeeded on the key issues concerning Mr Porter’s property in Verbier, Switzerland.

The claim was brought by Mr Brian Padgett, sole proving executor of Mr Porter’s estate. Mr Porter died in Switzerland on 10 November 2021. The Estate’s case was that the agreements, or certain clauses within them under which Mr Boulter claimed rights over Mr Porter’s chalets, Cheval Marin and le Petit Monde, were void under Swiss law. Among other things, Mr Boulter claimed options to buy le Petit Monde for CHF 3.5 million and a parcel of land known as “Plot B” for CHF 450,000.

Arfan Khan, instructed by Margherita Barbagallo and Nilojana Nirmalan of Dragon Argent Limited, appeared for the Claimant at trial. Arfan Khan settled the Amended Particulars of Claim, which developed the Estate’s case that Mr Boulter’s purported rights over the Swiss properties were void for want of the formalities required by Swiss law. He also asked the joint expert written questions on Swiss law. Those questions led to the expert’s evidence on the points that were unchallenged at trial and on which the Court relied.

Timothy Evans, instructed by Sherrards, appeared for the Defendant

What the Court decided in the Estate’s favour

The options over Mr Porter’s Swiss property are void.

  1. Plot B (paras 129-130). The Court held that clause 3 of the Variation Agreement “was ineffective at Swiss law to grant the option it purported to grant”. The option had not been made by public deed or annotated in the land register, and so “was null and void and of no effect”. This was on the basis that the grant of an option is a right in rem.
  2. Mr Boulter’s late attempt to recast the option failed (paras 131–132). In closing, Mr Boulter argued that the option was merely a personal right that the English court could enforce. The Court had “considerable hesitation” in accepting that argument, noting that an option creates an equitable interest in land “which is a right in rem”. The argument, “newly introduced in the afternoon of a day of closing submissions”, did not succeed.
  3. Le Petit Monde (paras 124–125). The Court accepted the unchallenged evidence of the jointly instructed Swiss law expert. That evidence was that the earlier option to buy le Petit Monde did not comply with the mandatory Swiss requirement for a public deed, and that it is “highly probable” that the option “is null and void and cannot produce legal effects”.
  4. Swiss law governs rights in rem over Swiss land (paras 118–121, 173). The Court adopted the principle advanced by the Estate, drawn from Dicey, Morris and Collins, that rights over land are governed by the law of the place where the land is situated (the lex situs). It held that any question about rights in rem under the agreements, including their validity, falls “to be determined under Swiss law, and not under the law of England”. The Court also accepted the Estate’s submission, based on Akers v Samba Financial Group [2017] UKSC 6, that an English court has no jurisdiction to enforce in personam a contract or equity that has been held not to exist.
  5. Mr Boulter must account to the Estate for rental income (para 182). Mr Boulter is liable to pay the Estate half of the net rental income from the two studio flats at Cheval Marin, both past and future. The Court will order an account.
  6. No remedy on the £300,000 cash-flow loan (para 181). Mr Boulter claimed the £300,000 loan with interest under clause 4 of the Variation Agreement. The Court held that specific performance of an obligation to lend money is not available. It said that “in the absence of a claim in damages based on losses said to have been suffered as a result, no remedy is sought”. The Estate had argued that a borrower cannot simply recover the loan sum and relied on South African Territories v Wallington and Western Wagon v West.
  7. No repairing obligations on the Estate (para 184). The Court rejected Mr Boulter’s claim that the Estate, as landlord, must maintain and repair Cheval Marin and le Petit Monde. It held that “the leases … impose no repairing obligations on the landlord”.
  8. No order for Plot B (paras 165–167, 174). The Court found no evidence that Mr Boulter had ever made the request required by clause 20. It found that the only candidate request, his pleading, “may not suffice” because it “is incapable of being acted upon without clarification”.  Whether any request has been made and relief or damages are available has been deferred to the consequentials hearing.

Findings in Mr Boulter’s favour

The Court rejected the Estate’s challenges based on misrepresentation and on the validity of the agreement as a whole. It upheld Mr Boulter’s occupation of Cheval Marin and le Petit Monde as personal leases. It also found the Estate liable for failing to fund the refurbishment, with damages to be quantified.

Next steps

The Court ordered a consequentils hearing to determine consequential issues. Time for any party to seek permission to appeal has been extended to 21 days after that hearing. The Claimant has reserved his right of appeal.

About counsel 

Arfan Khan practices in Chancery, Commercial and Public Law. He has appeared as sole or lead counsel in more than 70 cases with published judgments, mainly in the Court of Appeal, High Court and the UK Supreme Court. At the invitation of the senior judiciary, he also exceptionally sat in with a full time Chancery judge of the High Court directly from the bar.

Chancery Division rules on the test for setting aside summary judgment and copyright infringement

Appeal, Chancery Division, copyright infringement, copyright infringement, High Court, Phonographic Performance, Phonographic Performance Judgment, summary judgment set aside test, Uncategorized, , , , , , ,
Phonographic Performance Ltd v Ambibola Balgun t/a Mama Africa [2018] EWHC 1327 (Ch)
Copyright infringement – Summary Judgment set aside test

The Claimant claimed that the Defendant had played sound recordings, which infringed copyright in relation to two songs, contrary to s.16 of the Copyright & Patents Act 1988 (“the CPDA”). The Claimant obtained summary judgment on its claim in the absence of the Defendant who was acting as a litigant in person. Following enforcement, the Defendant applied to set aside summary judgment. The Master refused to set it aside using CPR 39.3 (5) as a guide.

The Defendant appealed contending that

1. The Master’s approach to the principles applicable to setting aside an order for summary judgment obtained in the absence of a party was wrong, in that he had applied the test for setting aside judgment after a trial, which was not the right approach. The defence had real prospects of success because the defendant had authorised the playing of music in the restaurant, but he had not authorised the infringement of copyright.

2. He had no control over whether independent DJ’s played music infringing the copyright;

3. There were other reasons why this matter ought to go to trial, including the fact that it was inappropriate to conduct a mini trial at the summary judgment. (§ para 9 of the Judgment).

Miss Penelope Reed QC sitting as a Judge of the High Court Chancery Division held:

1. There was some force in the first argument, and it ought to be easier to set aside summary judgment orders in appropriate circumstances (§ para 13).

2. The Court should take into account other rules of the CPR which provide that judgments can be set aside such as judgments in default under CPR r 13 (§ para 14).

3. It was not inappropriate to take into account considerations set out in CPR r 39.3 (5). However, the Judge held that those considerations ought not to be too rigidly applied in circumstances where there has been no trial (§ para 14). There may be other relevant considerations, including whether there are other reasons why the matter ought to be tried (§ para 15).

4. The Master had used CPR r 39.3 (5) as a guide. Whilst another Judge may have taken a different view on the issue of whether the Appellant acted promptly, the Master could not be criticised for finding that the application had been made late. The Master had not erred (§ para 18).It is the authorisation of the playing of music in public which is relevant within the meaning of s.16 of the CPD 1988, and not the authorisation of specific songs which infringe copyright (§ para 28).

5. Amstrad could be distinguished on the basis that there was no control over use to which their equipment was put, whereas the Appellant had complete control over the playing of music in his premises (§ para 28).

6. DJ’s did not exceed the nature of the authority conferred upon them. Therefore, the Master’s decision was not at odds with the law of agency (§ 29).

7. There were no real prospect of success at trial and permission ought to be refused (§ para 30).

The Judgment can be accessed here:

http://www.bailii.org/ew/cases/EWHC/Ch/2018/1327.html

Judgment: Phonographic Performance Ltd

Arfan Khan argued the case on behalf of the Defendant, instructed by DCK Solicitors. He did not appear below.

State Immunity
Court of Appeal