Tag Archives: High Court trial

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

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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.

Zambian Adoption Recognised in English High Court Probate Trial: Arfan Khan Acts for Successful Claimant

Chancery Division Trial, Conflict of Laws, , , ,

Zambian Adoption Recognised in English High Court Probate Trial: Arfan Khan Acts for Successful Claimant

Introduction

Arfan Khan appeared for the successful Claimant in a contested probate trial before Deputy Master Jefferis in the High Court, Chancery Division. The extempore Judgment was delivered on 30 July 2025, following a 2.5-day trial. The Court granted the Claimant a declaration that he was an adopted son of the deceased and, accordingly, entitled to letters of administration. The Defendant was ordered to pay the Claimant’s costs, including an interim payment on account of such costs.

This was notwithstanding the Defendant’s reliance on a judgment of the Zambian High Court, which had previously granted letters of administration over the same estate to her and another relative.

Procedural Background

The Defendant was initially legally represented, but her legal team withdrew. The Defendant then appeared in person at trial, accompanied by a McKenzie friend, authorised by the Court.

During the hearing, the Defendant made three separate applications to adjourn, one of which was supported by medical evidence that the Court found inadequate. Applying established legal principles on adjournments, the Court refused all three applications and awarded the Claimant costs in respect of each.

Factual Background

The Claimant was adopted in Zambia in November 2002 and subsequently relocated to the United Kingdom, where he lived with the deceased. He was enrolled in school and registered with a GP surgery, naming the deceased as his parent. His UK immigration records confirmed entry as her adopted child.

The Claimant’s adoption status was never disputed during the deceased’s lifetime. However, following her death, the Defendant allegedly excluded the Claimant from estate matters and removed documentation evidencing the adoption. The Defendant later obtained letters of administration in Zambia, but it emerged that the Zambian Court had not been shown key adoption documents, which were subsequently produced in the English High Court proceedings.

The Issues

The central issue for the Court was whether the Claimant had been lawfully adopted by the deceased and, if so, whether he was entitled to letters of administration in priority to the Defendant. The Defendant opposed the Claimant’s application and sought a grant in favour of the deceased’s sibling. She further alleged that the Claimant’s birth certificate was a forgery and invited the English Court to recognise the Zambian grant of administration.

During trial, the Defendant introduced—for the first time—an adoption petition suggesting that the deceased had applied to adopt another relative. She contended that this undermined the Claimant’s case and highlighted alleged inconsistencies in the Claimant’s parentage.

Expert Evidence and Submissions

Arfan Khan conducted the examination-in-chief of the Claimant’s expert in Zambian law. The expert gave evidence as to the authenticity and legal effect of the Zambian adoption documents, confirming that they were valid and binding under Zambian law.

Following the Defendant’s withdrawal from the proceedings, the Court adapted the trial process to ensure procedural fairness by undertaking the cross-examination itself that would ordinarily have been conducted by the Defendant. In response to judicial questions, the expert reaffirmed the validity and binding nature of the adoption order.

Recognition of the Zambian Grant

On behalf of the Claimant, Arfan Khan submitted that the Zambian grant of letters of administration should not be recognised in England and Wales, as it had been obtained in breach of the principles of natural justice. Specifically, the Zambian court had not been shown material adoption documents. It was further argued that the adoption documents were authentic and legally valid under Zambian law.

The Court accepted these submissions and declined to give effect to the Zambian judgment. The Judge therefore ordered that the Zambian grant should not be resealed in England and Wales.

The Court also noted a further submission advanced by Arfan Khan on behalf of the Claimant: that, based on the date of birth recorded in the documentary evidence, the individual named in the Defendant’s adoption petition (who was not a party) could not have been a minor at the material time and, accordingly, could not have been lawfully adopted under English law.

Arfan Khan was instructed on behalf of the Claimant by C V Brooks Solicitors