Tiffany Scott KC

Civil fraud and asset recovery

Tiffany’s practice encompasses a range of complex civil fraud proceedings and asset recovery litigation, often with an international element, in which she can bring to bear her considerable technical experience and expertise in relation to attacking and defending trust structures and in dealing with proprietary and equitable interests. She has advised and represented clients in various dishonest assistance, deceit, breach of fiduciary duty and unjust enrichment claims over the years, involving restitutionary remedies and change of position defences, including acting for Credit Agricole Indosuez in the Niru Battery Manufacturing v Milestone Trading & Ors litigation, both at first instance and in the Court of Appeal, acting for Vivian Imerman in a high-profile dispute with Robert Tchenguiz regarding the breakdown of a joint venture for purchasing and operating Whyte & Mackay, and acting for the Duke of Norfolk in Fitzalan-Howard v Hibbert, a dishonest assistance claim arising out of the demise of Erinaceous Group.

Her work in this field frequently involves interim applications for freezing and proprietary injunctions, disclosure orders, orders for service out of the jurisdiction and jurisdiction challenges and contempt proceedings. In November 2021 Tiffany spoke at Thought Leaders 4 FIRE – QC Surgery: Fraud on the subject of freezing and proprietary injunctions.

2021 and ongoing casework includes:

• Invest Bank PSC v El-Husseini & Ors (2021) – acting for Swiss trustees of a family trust in ongoing proceedings brought by a UAE bank seeking freezing and disclosure orders to enforce judgments obtained in the UAE and in support of Canadian proceedings pursuant to 25 Civil Jurisdiction and Judgments Act 1982 and under the Chabra jurisdiction; and seeking to challenge transfers of assets worth £19 million on the grounds of retention of beneficial ownership and as transactions defrauding creditors under s.423 of the Insolvency Act 1986. A jurisdiction challenge is to be heard in February 2022.
• Settle Safe Ltd v Eurofunding Ltd & Anr (2021) – acting for a Canadian online payment services provider in ongoing claim against a payment processor for fraudulently disposing of €3.8 million of merchant funds, involving dishonest assistance in a breach of trust, procuring breach of contract and unlawful means conspiracy; obtained interim and final proprietary and freezing injunctions and disclosure Contempt application to be heard in March 2022.
• Foglia v The Family Officer Ltd & Ors [2021] EWHC 650 (Comm) – acting for defendants in proceedings for knowing receipt, dishonest assistance and unjust enrichment following misappropriation of €15 million from Cayman bank account held by an Italian fiduciary nominee company; interim proprietary and freezing injunctions and disclosure orders under CPR 1(1)(g) and Norwich Pharmacal jurisdiction obtained by claimant, followed by summary judgment and post-judgment freezing orders and enforcement issues.
• Latchworth Ltd v HSBC Bank PLC (2021) – acting for HSBC in ongoing proceedings alleging dishonest assistance in a breach of trust and negligence following misappropriation of €11.5 million of trust assets by a customer of the bank.
• Ahmad v Owadally (2020) – acting for parties to a joint venture found guilty of money laundering offences, on appeal against decisions reached on the taking of an account of profits of the joint venture including issues of whether money found to have been the proceeds of crime should be brought into account.
• Advising a lender as to liability for procuring a breach of contract and unlawful means conspiracy arising from implementation of a proposal to remove valuable assets from an operational company upon the disposal of a well-known London hotel.
• Representing a barrister in a claim relating to alleged negligent advice regarding compliance with local authority enforcement notices, and alleged negligent conduct of criminal litigation under POCA.

Earlier cases include:

• Luitpold Immobilienverwaltung v Huber & Grothe – acting for claimant in proceedings against judgment debtors to provide information about their assets and in contested committal proceedings.
• Axle Holdings Ltd v Letter – acting for claimant in claim for fraudulent misrepresentation and breach of warranty against vendors of shares in luxury vehicle company with a sale price of $52 million.
• Vocational Health Services v BMI Healthcare – acting for BMI in claim by a consortium of doctors in relation to a failed joint venture alleging conspiracy.

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Professional liability

Tiffany has an established reputation in the area of professional liability having been recommended in this field by The Legal 500 for many years. She undertakes a wide variety of professional negligence work, whether acting for claimants or for the insured, in claims against solicitors, barristers, accountants, trustees, surveyors, construction professionals, finance practitioners (including pension advisers) and insurance brokers.

Much of her work in this area is property or trust related but she also undertakes a variety of cases with a financial services element including claims arising out of poor investment advice or mis-selling and other related actions requiring analysis of the performance of investments for the purpose of assessing damages.

She has experience dealing with claims requiring consideration of the Financial Services and Markets Act 2000 and the Conduct of Business Rules and she has also, over the years, dealt with claims involving previous regulatory regimes including the rules of FIMBRA, the Personal Investment Authority, and LAUTRO.

2021 and ongoing casework includes:

• Representing a barrister in ongoing claim relating to the alleged negligent conduct of litigation in which the underlying claim in unjust enrichment failed.
• Representing a barrister in ongoing claim relating to alleged negligent advice regarding compliance with local authority enforcement notices, and alleged negligent conduct of criminal litigation under POCA.
• Latchworth Ltd v HSBC Bank PLC – acting for HSBC in ongoing proceedings alleging dishonest assistance in a breach of trust and negligence following misappropriation of €11.5 million of trust assets by a customer of the bank.
• Advising and representing claimants in various different claims regarding solicitors’ negligence in conveyancing transactions including failure to report onerous lease terms, failure properly to report on terms of a guarantee, failure properly to advise as to terms of sale contracts and rent review clauses, failure to register an option to purchase; and advising and representing clients in associated rectification proceedings.
• Acting for potential claimant in anticipated proceedings against tax advisors for negligent advice in relation to the establishment of LLPs and changes in capital profit- sharing ratios resulting in a tax liability of over £2.5 million.
• Acting for potential defendant solicitors in anticipated group litigation arising out of the release of deposits held as stakeholder on real estate transactions.
• Acting for solicitors in an ongoing claim brought by landlord of a leisure park alleging negligent drafting of a lease by failing to include in the calculation of rent the income of subsidiaries and licensees who also operate from the park.

Recent cases include:

• Acting for Cayman Islands attorneys in a claim arising out of alleged negligent handling of complex trust litigation.
• Representing a firm of investment advisers in proceedings brought by a beneficiary of a trust alleging that negligent financial advice had been provided to the trustees.
• Creative Horizon v Scott Fowler – acting in group litigation for a group of 60 overseas investors who paid deposits for the purchase of flats yet to be built in England, seeking damages from the solicitors who advised and alleging a failure to warn about the risks of the transactions.
• Orientfield Holdings Ltd v Bird & Bird [2017] EWCA Civ 348, and [2015] PNLR 33 (first instance decision) – acting for solicitors in a claim alleging negligence in the course of the purchase of a residential property worth £25 million by failing properly to advise the client as to the contents of a “Plansearch”. The case at first instance was listed by The Lawyer as one of the top 20 cases of 2015.
• Pannikov v Taylor Williams Daley & Mishcon de Reya – acting for claimants against building surveyors and real estate transaction lawyers in a claim arising out of alleged negligent advice and drafting in relation to the purchase of a redeveloped property.

• HBB v John M Lewis – acting for claimant property-owning company against solicitors in claim for alleged negligent conveyancing.
• Advising a former director/shareholder in relation to the negligent drafting of an agreement for his exit from the company.
• Acting for the owner of a retail development in a claim against its solicitors for failing to advise it properly as to service of a notice under an agreement for lease.
• Advising solicitor defendants in lost litigation claim involving complex questions of loss of a chance.
• Advising a major institutional investor as to potential solicitors’ negligence proceedings arising out of its investment in a large well-known shopping centre.
• Advising and representing insured clients in various disputes arising out of allegedly negligent conveyancing and drafting of leases, including rectification claims, and negligent property surveys and valuations.

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Property

Tiffany is a well-known property litigator and deals with all aspects of property litigation and advisory work including:

• Commercial and residential landlord and tenant disputes (such as lease renewals, consents to assignment, unauthorised alterations and dilapidations claims)
• Claims for rectification of leases and other agreements
• Real property matters such as rights of way, rights to light and restrictive covenants (including modification under section 84 LPA 1925)
• Interference with land such as trespass, nuisance and adverse possession claims
• Enforcement of legal charges, including mortgage possession proceedings and the appointment and removal of receivers and the exercise of their powers and duties
• Insolvency issues in the real estate and landlord and tenant context
• Disputes arising out of development agreements (including incomplete joint ventures, Pallant v Morgan type constructive trusts, proprietary estoppel; construction of agreements and the duties of joint venture partners, including good faith and best and reasonable endeavours clauses)
• Disputes arising out of failure to complete or alleged rescission of contracts for sale

She appeared in the Supreme Court in May 2019 in Sequent Nominees Ltd v Hautford Ltd [2019] UKSC 47 [2020] A.C. 28, the latest word on reasonableness of withholding consent.

Tiffany is Chair of the Property Bar Association and co-edits the chapter of Hill and Redman’s Law of Landlord and Tenant dealing with maintenance of the fabric of the premises.

She has been ranked in this field for many years by The Legal 500 and by Chambers & Partners.

Casework during 2021 and ongoing includes:

• Acting for major national infrastructure provider in arbitration proceedings relating to the disposal of land consequent on the expiry of a concession agreement with a railway operator.
• Rustington Investments Ltd v Esporta Health & Fitness Ltd – acting for defendant guarantor in action for arrears of rent, alleging no liability pending participation in the UK Government’s binding arbitration scheme.
• Smoke Club Ltd v Network Rail Infrastructure Ltd – acting for tenant in proceedings seeking compensation following compulsory purchase of the demised premises, alleging existence of a tenancy on grounds of proprietary estoppel alternatively a periodic tenancy; successful in 4 day trial of preliminary issue in Upper Tribunal January 2021.

• Cotter v Warren – acting for defendant in claim alleging acquisition of rights of way over two plots of land by prescription; 4 day County Court trial in October 2020, permission to appeal to High Court, appeal settled June 2021.
• Lesis Ltd v Aziz – acting for defendant in proceedings seeking specific performance of a contract for sale of development land, defended on the basis that the claimant was not itself ready willing and able to complete alternatively on basis of misrepresentation; 5 day High Court trial in 2021, settled on first day.
• Bvlgari (UK) Ltd v British Grolux Investments Ltd – acting for Bvlgari in ongoing contested lease renewal proceedings under ground (f) of section 30(1) of the 1954 Act relating to flagship store on New Bond Street.
• Dustyhall Ltd v Gower Furniture Ltd – acting for defendant tenant in claim alleging breach of the lease by parting with possession of the property to a group company for whom the tenant was acting as agent; settled 2021.
• Advising major national infrastructure providers and government departments as to various matters arising out of agreements to develop railways, to develop major London landmark sites, to operate break clauses of prestigious London headquarters, and as to dilapidations and the giving of vacant possession.

• Advising tenant of a national department store as to modification of leasehold covenants under s.84 LPA 1925.
• Advising a London Borough Council as to issues arising under a long lease of the town shopping centre including consent to assignment, the operation of user and alteration covenants, and as to modification of leasehold covenants under 84 LPA 1925.
• Advising major national hotel chain as to issues that arise under a hotel management operating agreement.
• Advising lender as to issues arising on pre-pack administration including disposal of a well-known London hotel, including issues as to liability for procuring a breach of contract and unlawful means conspiracy.

Earlier cases include:

• Morrisons v L&Q (2020) – acting for landlord in lease renewal proceedings, seeking possession on ground (f) of section 30(1) of the 1954 Act. Settled 2021.
• Milburngate Durham Ltd v Turtle Bay Restaurants (2020) – acting for landlord in proceedings seeking specific performance of an agreement for lease, allegation that certificate of practical completion invalid and access date not achieved.
• Re All Saints Retail Ltd (2020) – acting for landlord of flagship retail unit on Regent Street seeking an order to revoke a CVA on the grounds that its guarantor contended the CVA had extinguished its liability under an Authorised Guarantee Agreement.
• Advising a tenant in relation to the proposed development of airspace above a hotel.
• Advising a landlord as to the validity of a break notice served by the wrong party and at the wrong premises.

• Acting for potential claimants in anticipated proceedings for an injunction restraining interference with a right of way and trespass.
• Sequent Nominees Ltd v Hautford Ltd [2019] UKSC 47 [2020] C. 28 – acting for the tenant in the Supreme Court (and in courts below) in this important case dealing with unreasonable withholding of consent.
• John v Shelvex (2019) – acting for successful claimants in proceedings alleging that a Pallant v Morgan equity had arisen, 4 day trial in June 2019.
• GE CIF Trustees v EE Limited (2019) – acting for landlord in claim where tenant alleged breach of covenant for quiet enjoyment, derogation from grant and repudiatory breach of the lease arising from construction works to adjacent premises.
• Mir v Mir (FTT, 2018) -acting for the successful defendant in a 2 day trial to determine beneficial ownership of the family home.
• Kilburn v London Borough of Barnet (2018) – acting for the tenant in 3 day trial under ground (f) of the 1954 Act, contesting that the landlord Council had shown a sufficiently clear and settled intention to redevelop where the relevant committee had not met to take a final decision.

• Anglia Leisure Ltd v Burlinson (2018) – 5 day trial of a right of way dispute relating to ancillary rights to load and unload.
• Acredart & Car Giant v London Borough of Hammersmith & Fulham [2017] EWHC 197 (TCC) and [2017] EWHC 464 (TCC) (Costs) – acting for the successful Council in a dilapidations claim, an important decision regarding the correct approach to valuations under section 18(1) LTA 1927.
• Canary Riverside Estate Management Ltd v Circus Apartments Ltd (2017) – acting for landlord of a block of flats in Canary Wharf worth £35 million in proceedings brought as a preliminary to forfeiture and defending a counterclaim for unreasonable withholding of consent to assignment and subletting.

• Acting in an arbitration of a joint venture dispute between property developer and landowner over the development of an estate of houses, involving complex questions of agency and authority.
• Acting for a trustee in bankruptcy attempting to resolve long-running issues in dealing with numerous properties which the bankrupt purchased with money obtained from banks by fraud, raising complicated issues of trusts of property interests and land registration.
• Leslie (Ashford) Ltd v Merlion Housing Association (FTT) [2016] – acting for a developer turning an office block into flats and seeking to terminate an agreement for sale.
• Benjamin UK Ltd v Residents of Redwood Glade (UT) [2016] – acting for a company using a residential property in a cul-de-sac as a home providing residential care for looked- after children in proceedings to modify a restrictive covenant.
• Marston’s Property Development v Payne [2015] – acting for Marston’s in proceedings to enforce an agreement for sale, purchase and development of land; successful application for an expedited trial.
• Peel Land and Property v TS Sheerness Steel Limited [2014] EWCA Civ 100 – successful appeal as to the removability of tenant’s fixtures.

• Peel Land and Property v TS Sheerness Steel Limited [2013] EWHC 2689 – refusal of interim injunction to prevent removal of tenant’s fixtures pending appeal.
• Advising a major national institutional investor in relation to its investment in a large well known shopping centre.
• Representing major national asset managers in an adjudication to determine whether breaches of a service partner agreement had taken place in relation to the management of a portfolio of over 250 properties across the UK.
• Representing Lincolnshire Co-Operative as landlord in 1954 Act lease renewal proceedings contested on ground (g) – defended by the Spar tenant on the basis that the 1954 Act is incompatible with the Human Rights Act 1998 in failing to provide adequate compensation.
• Advising and acting for a major international oil and gas company in relation to threatened trespass and protests at key London sites during the Olympics.

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Trusts, probate and estates: contentious

Tiffany is a member of STEP and she deals with all aspects of trusts and probate work – contentious and non-contentious, offshore, onshore and multi-jurisdictional. She has been recommended as a leading name in this field by The Legal 500 and Chambers & Partners for many years.

Her general areas of practice include:

• contentious trust litigation between beneficiaries and trustees
• disputes involving attacking or defending trusts and trust assets
• disputes involving trusts in divorce proceedings including consideration of when a nuptial settlement has arisen and of when trust assets might be a financial resource
• disputes involving construction of wills and contentious probate
• claims for the appointment and removal of trustees and executors
• claims for provision under the Inheritance Act 1975
• rectification of wills and trusts
• applications under the Variation of Trusts Act 1958
• applications under the Trustee Act 1925 for enlargement of trustees’ administrative powers
• approval of compromises on behalf of minor children
• Re Beddoe applications

2021 and ongoing casework includes:

• Acting for trustees of a €40 million Guernsey trust in ongoing proceedings concerning their purported removal by the Monegasque-appointed guardian of the settlor in favour of Monegasque trustees, including a challenge to the validity of the trust on grounds of undue influence and lack of capacity, forced heirship, freezing of trust assets in Switzerland and consideration of the Guernsey firewall legislation and conflicts of laws.
• Acting for beneficiaries of various BVI trusts worth £200 million established by a renowned figure in the sporting world in ongoing dispute involving questions of validity of removal of trustees and application by trustees to Court for blessing as to division of the trust assets on winding up, and threatened (late) application under the 1975 Act.
• Acting for trustee of multi-million pound trust in High Court proceedings arising out of a divorce, brought by a beneficiary for disclosure of trust documents and information and for an account of dealings with the trust fund, and ongoing advice as to terms of various indemnities to be provided by the parties.
• Acting for minor and unborn beneficiaries of three dynastic English settlements established by landed gentry ancestors worth £400 million in proceedings under the Variation of Trusts Act 1958 seeking an extension of the perpetuity period and modernisation of the trust instruments, in which an anonymity order was granted on an interim and on a final basis.

• Acting for Isle of Man beneficiary of a Jersey trust in ongoing Jersey proceedings brought by settlor/beneficiary seeking to have trustee removed for maladministration including questions of the weight to be given to wishes where settlor is not the economic settlor.
• Advising as to the provisions and operation of a family trust established under the law of the Abu Dhabi Global Market.
• Acting for recipient of a gift of shares in a Guernsey company in ongoing proceedings by the donor to set aside the gift on grounds of undue influence alternatively alleging the existence of a trust.
• Advising as to enforceability of a cohabitation agreement on the breakdown of a relationship, including questions of proprietary estoppel and constructive trusts.
• Advising as to enforceability of a cohabitation agreement and return of valuable artwork and an engagement ring.
• Acting for and against potential claimants in various anticipated contentious probate proceedings seeking to set aside wills on grounds of testamentary incapacity, undue influence and want of knowledge and approval.
• Acting for beneficiaries under an English will in a dispute as to the proper implementation of an option to purchase land in the testator’s estate.
• Acting in various complex and high value 1975 Act proceedings.

Recent casework includes:

• Acting for the executor of a settlor/trustee in ongoing claim brought by beneficiaries of a substantial trust for an account against the estate and the current trustee and a trustee de son tort, alleging misappropriation of assets.
• Acting for Cayman Islands attorneys in a claim arising out of alleged negligent handling of complex trust litigation.

• Advising trustees of a family trust of valuable land as to how to impose a “clawback” provision on beneficiaries to whom they have made distributions in order to share in the profits of future development.
• Representing minor and unborn beneficiaries in various different and ongoing applications to vary trusts to introduce a power to accumulate income and to extend the perpetuity period.
• Acting for the trustee of an overseas retirement benefit scheme with only one member, holding assets of around £60 million, as to issues that arise on the divorce of the member where his wife is challenging the exercise of the trustees’ powers and seeking information about the scheme.
• Advising on proceedings in Jersey to set aside a trust on grounds of undue influence and invalidity of the trust instrument.
• TP v PRBP [2018] EWHC 2433 (Fam) – acting for trustees of a £400 million trust in divorce proceedings where the wife claimed that assets to which the husband is entitled under the trust should be brought into account on the divorce.
• Labrouche v Frey (Re Olga Martin Montis) [2016] EWHC 268 (Ch) – acting for Marquesa Soledad Cabeza de Vaca in long-running litigation brought by her son culminating in 6 week trial alleging wrongful distribution of £20 million of trust assets and excessive fee- taking by the trustees, arising out of the conversion of a Liechtenstein establishment to a foundation.
• Skillings v Kibby [2016] EWHC 3165 – acting for successful beneficiaries under a will in a 5 day taking of an account; an account was obtained on the footing of wilful default following misapplication of estate assets; included cross-examination on the questions whether an Old Masters painting was sold at an undervalue and whether excessive fees were paid to non-professional Permission to appeal was refused after a 2 day hearing.
• Acting for the Hayward family in long-running litigation in the Bahamas in relation to the family trusts of the late Sir Jack Hayward which own half the Grand Bahama Port Authority – involving injunctions to restrain distribution of trust assets and the exercise of powers of appointment; setting aside trustee resolutions removing the family as beneficiaries; seeking the appointment of a judicial trustee; and an inquiry as to whether a trustee procured the removal of its co-trustees in breach of duty.
• Advising invalidly appointed trustees how to retire and obtain payment of their fees and expenses from the trust fund; applying to court to authorise payment of fees and to ratify the actions the trustees had taken while invalidly appointed.
• Appearing before the Court of Protection on contested applications for the appointment of a deputy and appointment of a litigation friend.
• Acting for a professional interim receiver appointed under the Mental Health Act 1983 on a claim by a disappointed beneficiary for allegedly negligent failure to procure a statutory will.

Download Trusts, probate and estates: contentious CV