Sara Benbow

Call:1990

Introduction and Contact details

Sara’s interest in property and business-related litigation has developed into a successful practice based upon those two areas in a domestic and international context. She is a member of our Commercial, Insurance and Property Divisions.

Sara manages to combine a friendly and accessible approach with a keen practical and business sense, regularly managing complex factual and legal disputes whilst tailoring her legal advice to the reality of the client’s situation. As well as being in demand as a specialist adviser, she is particularly highly regarded as an advocate whether in the Court of Appeal, High Court and County Courts or before the various specialist Property and Commercial tribunals.

Sara is also a qualified mediator and is available to conduct mediations in most types of property, inheritance or business dispute either through Hardwicke or through the Clerksroom mediation service, where she is one of the few listed Property-specialist mediators. She has considerable experience and an impressive rate of success as a mediator and as a mediation-advocate both in Property disputes and across the spectrum of Commercial work.

Tel:    020 7242 2523
Fax:   020 7691 1234
Email: sara.benbow@hardwicke.co.uk

COMMERCIAL

Sara undertakes work across the spectrum of commercial cases. She has extensive experience in disputes and potential disputes arising from most aspects of business dealings in the UK and abroad, with particular expertise in matters of insolvency. Her cases regularly involve complex factual issues, substantial elements of financial analysis and allegations of fraud. As well as acting and advising in the context of litigation, Sara is frequently instructed at a non-contentious stage or in relation to some form of ADR.

In addition to her work as an advocate, Sara is a qualified mediator with an impressive record, and is available to conduct mediations in most types of commercial dispute.

Arbitration

Sara represents clients, drafts documents and advises in the context of arbitral proceedings. Her practice in this area has ranged from disputes as to the quality of goods or workmanship in respect of machinery, bulk stock, construction works and the like through issues as to the interpretation of and compliance with property development and regeneration contracts, to arguments emanating from international and domestic supply contracts with varied subject matter,
Recent work includes;
 
• Drafting and advising the developer as to a potential reference in relation to a substantial regeneration project
• Addressing the impact of insolvency on existing arbitral proceedings
• Advising in the context of repeated issues with electrical stock.
• Advising in relation to a crop failure caused by contaminated seed

Banking Finance & Credit

Sara is frequently called upon to advise and represent clients in cases concerning banking, finance and credit matters. Particular areas of expertise include documentary credits, mortgages, and the impact of insolvency on financial and credit arrangements. She acts for banks and other finance or credit providers, the individuals or companies whose arrangements are in issue, and third parties such as guarantors or creditors whose position may be affected.

Recent Work

• Advising as to the change of regime between the Consumer Credit Acts 1974 and 2006 and their impact on a commercial dispute spanning the transition
• Advising and appearing in the context of the insolvency of a borrower who had not provided proper security for the monies advanced, and upon whose estate there were multiple competing claims
• Appearing in and advising upon a dispute as to the impact upon a mortgagee’s ability to recover possession where the borrower had died and a probate dispute was underway, causing funds in the hands of a third party effectively to be frozen
• Advising on the continued liability of a former partner under charges of property in his name, some of which had ceased to be partnership assets
• Advising upon and appearing in a series of interlinked cases considering the ability of a bankrupt seeking to annul that bankruptcy to impede LPA Receivers appointed under a charge from dealing with relevant property
• Advising upon and negotiating a settlement of claims under guarantees with a defence based upon estoppel

Reported Cases

Montrod v Grundkotter Fleischvertriebs GmbH [2002] 1 WLR 1975, CA. concerning the impact upon the issuing bank’s liability to pay under a UCP500 letter of credit where false documents were presented without fraud on the part of the beneficiary 

Griffin v Awoderu [2007] All ER (D) 162 (Sep) ChD  a dispute as to whether funds had been advanced as a loan or an investment into a JVA for the purchase of properties, whether or not a partnership had been created and whether a third party involved in the discussions was liable to make a contribution to the defendant’s resultant liability.

Griffin v Awoderu [2007] All ER (D) 37 (Nov) ChD  concerning the meaning of a freezing order obtained at the outset of those proceedings which permitted the defendant to spend a specified weekly sum in respect of living expenses. After judgment the defendant applied for a backdated sum in respect of living expenses, and this hearing considered whether the successful claimant could be required to provide such sums under standard freezing order terms.

Griffin v Awoderu and others [2008] All ER (D) 140 (Jan) ChD  in the course of the proceedings which established a contract of loan rather than a JVA, it became apparent that the defendant had purported to sell a relevant property (notwithstanding the freezing order) on various occasions. A secondary claim was commenced seeking to set aside that transaction under the Insolvency Act 1986 s.423 as a transaction at an undervalue. It was held that no insolvency is required to invoke this section, that the transaction was for a prohibited purpose and that it would be set aside.

Civil Fraud

Sara regularly deals with cases in which allegations of fraud arise. She is used to addressing both the legal and procedural requirements of such allegations in all sorts of contexts, and brings to bear her considerable experience in advising and representing clients on either side of fraud arguments.
Recent work includes;

• Advising and representing directors defending a claim that they fraudulently misrepresented the economic status of their company and/or committed the tort of deceit in that regard
• Acting for an innocent purchaser of property whose vendor disappeared with the substantial deposit between exchange and completion of the purchase, leaving a dispute between the purchaser and various equally innocent creditors as to their relative status, restitutionary options and the impact of that fraud
• Advising and representing a major property developer in respect of its claims against another party involved in the project based upon dishonesty and related economic torts
• Seeking orders for disclosure against third parties in the context of fraud allegations
• Advising and representing a charity in a complex dispute which included allegations of conspiracy against some of its former officers and third parties

Company Law

Sara has experience of company-related disputes at all stages from pre-corporate Heads of Terms through incorporation, shareholders’ rights and obligations, directors powers, duties and liabilities, transactional issues, and corporate demise and its consequences. She provides particular specialism in matters of corporate insolvency, whether in respect of the options available to a company in difficulties or in relation to the impact of the various forms of insolvency upon third parties, rights, liabilities and transactions.

Recent work

• Advice relating to the control of a major entertainment venue and the options available to disaffected individuals of varying status
• Advice and representation in a series of cases concerning a failed company set up to facilitate sales of European timeshare properties, and the potential consequences for its directors and various third parties
• Advice and representation in a claim concerning the translation of heads of terms into a formal corporate arrangement and the validity of actions by the interested parties.

Franchising

Sara has undertaken a substantial amount of franchise-related litigation and advisory work. Relevant sectors have included industrial process franchises, healthcare and retail service providers, and food and entertainment operations. She has particular expertise in the impact of insolvency on franchise agreements and the interaction of franchise agreements with property rights and obligations, speaking on the latter subject at the Hardwicke Franchising Seminar in 2009. Sara has also acted in respect of international organisations seeking to extend their franchise operations into the UK.

Recent Work

• Advising in respect of an international entertainment venue concept and its introduction into the UK
• Advising and representing in the context of attempts to terminate a franchise agreement along with related property and other contracts in circumstances of insolvency
• Advising and representing franchisors seeking to recover sums due under agreements for the provision of financial services
• Advising franchisees in a dispute about mis-selling

Insolvency & Restructuring

Sara is one of Hardwicke’s foremost insolvency specialists. She is regularly called upon to advise and represent insolvent or potentially insolvent individuals, partnerships or companies, those connected with them or third parties who have dealings with them in all sorts of contexts. She is happy to accept instructions from insolvency practitioners as well as from the legal profession both in the UK and abroad. She also provides seminars dealing with insolvency options and their implications in particular areas of law, and is a co-author and regular presenter of Hardwicke’s frequently-requested session on Insolvency for Property Lawyers.
Recent work includes;

• Advising and appearing in linked claims involving a bankrupt seeking to impede LPA receivers from exercising their powers on grounds that the bankruptcy should never have been made and their appointment was invalid.
• Advising a former partner as to his rights and liabilities on the insolvency of his former partnership
• Acting for the trustee in bankruptcy as he sought to untangle a web of dubious transactions connected with a failed property development business
• Advising and representing directors of a company in proceedings seeking to make them personally liable to third parties following the administration and then liquidation of their company
• Assisting with the proposed restructuring of an insolvent group of companies

Cases

Griffin v Awoderu and others [2008] All ER (D) 140 (Jan) ChD  in the course of proceedings which established that the parties had entered into a contract of loan rather than a JVA and that the defendant was liable to the claimant for substantial sums, it became apparent that the defendant had purported to sell a relevant property (notwithstanding the existence of a freezing order) on various occasions. A secondary claim was commenced seeking to set aside that transaction under the Insolvency Act 1986 s.423 as a transaction at an undervalue. It was held that no technical event of insolvency is required to invoke this section, that the transaction was for a prohibited purpose and that it would be set aside.

Media & Entertainment

Sara has experience in advising upon and litigating about contracts concerning the entertainment industry. She is also well versed in the particular difficulties faced by entertainment venues in the property and planning spheres, having brought her skills to bear on the resolution of such disputes on a considerable number of occasions..
Recent work includes;

• Advising in respect of an international entertainment venue concept and the contractual structure of its introduction into the UK
• Acting for a nightclub seeking to overturn a refusal of permission to convert part of its premises into a casino
• Advising on the impact of a potential insolvency upon the UK operations of an international media entity
• Acting for a London entertainment venue in its disputes with suppliers and its landlord

Partnership

The services of a barrister can be of assistance at any stage of a partnership from advice as to initial heads of terms and formation, through disputes as to its status or operation, to attempts (with or without the assistance of the court) to bring it to an end. Sara provides considerable experience and expertise in all aspects of such disputes, and is frequently called upon to advise and represent partners, former partners, insolvency practitioners and third parties who have had dealings with or some form of interest in the partnership concerned. Her commercial and practical approach to the identification and resolution of disputes is often of particular benefit in partnership cases, as is her easy management of complex and voluminous financial and other information.
Recent work includes;

• Dealing with the continuing liability of a retiring partner to various third parties absent proper formal provision for his release
• Advising on the options available for a potentially insolvent partnership and the implications of those options for the individual partners
• Upon the likely failure of a JV, advising upon the level of risk to the participants and the directors of the corporate partner
• Representing a disaffected partner in his efforts to dissolve a professional partnership and advising upon the complicated financial accounting exercise required as a result

Professional Negligence

Sara regularly acts for and advises the professionals who face allegations of negligence, their insurers, the former clients who make those allegations and third parties who may be affected by the issues thrown up by a professional negligence dispute. Her practice has encompassed such cases concerning many different types of professional, including architects, accountants, conveyancers, engineers, financial advisers, insolvency practitioners, solicitors, surveyors and valuers. She is also able to assist with the coverage and other issues which often arise in respect of professional indemnity insurance contracts in this context.
Recent work includes;

• Addressing the potential liability of an insolvency practitioner to creditors where their claims were apparently forgotten in the administration of the insolvent estate
• Acting for the owners of a renovated property seeking recompense for inadequate works from a supervising architect
• Advising a charity as to its potential claim against a firm of solicitors which held itself out as the agent of the charity in committing it to a disadvantageous transaction and failed to advise it as to the implications of the relevant legislation
• Representing a financial adviser and its insurers in respect of allegations of inadequate advice

Trade

Sara’s practice in the Trade context principally relates to issues of agency, commercial contracts for the sale and supply of goods and services and their ramifications, and the financing of and security for such contracts through arrangements such as letters of credit, guarantees, factoring agreements and retention of title clauses. She acts for and advises parties on either side of relevant contracts and third parties whose position may be affected by them. Sara is particularly adept at managing and analysing complex and voluminous financial and other information whilst dealing with the underlying dispute in a commercial and practical manner.
Recent work includes;

• Advising a national representative body on the validity of exclusion clauses in standard terms and conditions of supply
• Representing a former partner seeking to escape liability under an historic guarantee
• Advising upon and representing the purchaser of bulk electrical goods in a dispute which involved issues of agency, contractual construction, factoring and retention of title clauses

INSURANCE & REINSURANCE

In addition to Sara’s work in the Commercial and Property contexts, much of which involves insurance cover and requires an awareness of the issues which may arise in respect of coverage, her analytical abilities and strange enthusiasm for matters of contractual construction make her ideally suited to disputes between insurers and their assured as to the scope and avoidance of cover.

Occupier’s Liability

Sara’s Property practice, especially in relation to Landlord and Tenant or Property Development disputes, often requires her to address issues as to the extent of any insurance cover and the parties’ obligations in respect of insurance.
Recent work includes;

• Acting for a tenant whose management company had failed to comply fully with the landlord’s requirements as to insurance under the lease
• Advising a property developer as to the applicability of its insurance cover to problems arising in respect of contaminated land

Product Liability

Sara deals with commercial and property-related disputes in which the supply and use of faulty product has led to problems and loss. In this context, the existence and scope of insurance cover are frequently of considerable relevance to the advice she provides and the tactical decisions which need to be made as a result.
Recent work includes;

• Acting for a local authority in relation to the provision of a defective sealant compound used in a regeneration project where issues as to coverage and insolvency arose
• Advising on the scope to recover sums lost by virtue of the failure of machinery used in an industrial process allegedly caused by the inclusion of defective parts

Professional Indemnity

Within Sara’s professional negligence practice, as well as providing advice on merits for the professional indemnity insurer, she is regularly called upon to address questions as to the existence or scope of cover. She is also familiar with the types of conflict which may arise between the interests of the professional and his insurer, and is alert to identify and assist with the management of such situations.  
Recent work includes;

• Advising in respect of a solicitor’s liability for advice which wrongly analysed an unusual situation in respect of a series of linked conveyances of parcels of partly-unregistered land
• Addressing both with my clients and the other side the pros and cons of an allegation of fraud against a professional adviser given the likely impact of such an allegation on his insurance cover and consequent ability to meet any judgment against him without insolvency 

PROPERTY & PRIVATE CLIENT

Sara is a specialist member of Hardwicke’s Property and Private Client Division. She deals with real property disputes, all aspects of commercial landlord and tenant work and private residential landlord and tenant matters. She is also experienced in advising and representing those involved in property development issues and addressing questions about mortgages or other charges. She may be instructed by or on behalf of anyone with an interest in rights or transactions concerning land, real or personal property, including property owners, landlords, tenants, developers, neighbours, lending institutions, parties to planning disputes and guarantors. Sara is particularly interested in the effects of insolvency on property rights and the pitfalls encountered in conveyancing and development contracts.
Sara’s Private Client practice also encompasses a significant amount of work relating to the estates of the deceased, acting for personal representatives, beneficiaries, co-owners, creditors and others with an interest in the control and distribution of the relevant property. Once again, her expertise in matters of insolvency is of assistance in this context.
In addition to her more traditional work as an advocate and adviser, Sara is an accredited mediator with considerable experience and an impressive record both as a mediator and as a mediation advocate. She is available to conduct mediations in most types of property, probate or inheritance dispute either through Hardwicke or through the Clerksroom mediation service, where she is one of the few listed Property-specialist mediators.

Inheritance and Probate

Sara advises and represents clients in both the contentious and the non-contentious probate context. She regularly deals with challenges to the validity of wills (whether on the basis of a failure of formality or a failure of capacity or intention), questions as to the construction or variation of wills, the applicability and impact of the intestacy rules, issues arising over grants of probate or letters of administration, and the consequent management and distribution of the estate. She is equally familiar with the regime of the Inheritance (Provision for Family and Dependents) Act 1975, and can assist at all stages of such a claim. 
Recent work includes
• Acting for the former partner of the deceased in seeking to set aside a grant of letters of administration, to propound instead a will naming him as executor and principle beneficiary and, in the alternative, to bring an Inheritance Act claim
• Advising the former wife of the deceased acting as litigation friend for their children in a dispute with her former parents in law as to the control of the estate
• Advising as to partial intestacy and its practical consequences in circumstances where one of the residuary beneficiaries had predeceased the testator

Land & Real Property

At the heart of Sara’s Property practice is her work in the sphere of real property, whether as adviser, advocate or mediator. As well as her expertise in disputes over boundaries, easements and adverse possession, co-ownership, and mortgages, Sara provides specialist knowledge and considerable experience in conveyancing disputes including issues as to specific performance, rescission or registration and, especially in the property-development context, cases about covenants, options or overage provisions.
Recent work includes
• Acting for an innocent purchaser of land whose vendor disappeared before completion, leaving her to resolve issues of priority with a series of creditors who had obtained and registered charging orders against his interest prior to the court’s order for specific performance of her contract.
• Acting for Network Rail in a series of disputes as to adverse possession of railway arches and the land surrounding them
• Advising and representing a national charity in a claim for specific performance of a contract for the purchase of substantial premises with issues as to authority and estoppel
• Numerous neighbour disputes, generally involving analysis of plans and allegations of adverse possession
• Advising and representing various parties to property development contracts as to the construction and enforcement of their contractual rights, in particular options to acquire parcels of land, overage agreements and building leases
• Advising on the prospects of obtaining a mandatory injunction to require works on neighbouring land to halt subsidence caused by flooding and consequent erosion
• Representing clients seeking to obtain the discharge of restrictive covenants imposed long ago on the parcels of land carved out of a former aristocratic estate

Landlord & Tenant - Commercial

Sara’s Commercial L&T practice encompasses both contentious and non-contentious work for landlords, tenants and others such as guarantors or insolvency practitioners who hold interests related to commercial leasehold land. As well as  addressing issues relating to the 1954 Act, rent reviews, consents, dilapidations, and redevelopment, Sara has a particular specialism in the impact of insolvency on the commercial landlord and tenant relationship, and is a co-author and regular presenter of Hardwicke’s popular seminars on the subject.
Recent work includes
• Acting for directors of an insolvent tenant company whose landlord seeks to establish a direct duty on the individual directors to provide information as to the financial status of their company
• Representing clients seeking to include in a new tenancy under the 1954 Act a form of  break clause  which would operate in the event that a development-related option was exercised
• Representing a tenant in a dispute as to dilapidations where a redevelopment was likely
• Advising as to the establishment of a sufficient intention to oppose a new tenancy under ground F

Landlord & Tenant - Residential

Although Sara has many years of experience of dealing with all types of residential L&T matters, these days this aspect of her practice is principally focussed upon questions of enfranchisement and management of blocks let on long leases or the impact of insolvency on the residential landlord and tenant relationship.
Recent Work
• Representing the long leaseholders of a block seeking a vesting order where the mesne landlord had become insolvent and its liquidator had disclaimed the headlease
• Representing the landlord in a series of issues with a long-leaseholder who requires the support of the Official Solicitor and whose mental state contributes to breaches of covenants.
• Advising on the interpretation of a tenant’s repairing covenants and their extent in the context of an unusual parcels clause

Planning

The majority of Sara’s planning work arises in the context of property development, although she is equally happy to deal with questions of change of use, lawfulness, applications for permission and enforcement. Sara has a particular interest in issues as to the identification and remediation of contaminated land..
Recent work includes
• Acting for the bishop and elders of an evangelical church in a dispute with the LPA as to the permitted use of their premises
• Acting for a property developer in relation to the interpretation and variation of planning conditions and a s.106 Agreement which were such as to make the development unviable
• Acting for a nightclub seeking to overturn a refusal of permission to convert part of its premises into a casino
• Advising landowners affected by compulsory purchase of part of their land for the construction of a major road

Trusts

Sara has dealt with a variety of different types of trust including those established for religious purposes or to hold property on behalf of family members. She is particularly interested in the impact of a relevant insolvency upon the trust structure.
Recent work includes
• Acting for charitable religious trustees in a dispute relating to the acquisition of property and the capacity of trustees to bind their fellow trustees and the wider membership of the religious association.
• Advising some of the beneficiaries under a family trust as to their ability to take control of certain assets and the options available to them
• Representing one of the factions in a dispute as to control of a religious trust
• Advising the executor of a will as to the interpretation and validity of trusts established under that will

Trusts of Land

Trusts of Land arise in many of the areas of Sara’s Property practice, but most particularly in cases about co-ownership or property development. As well as advising and representing clients caught up in disputes as to the existence or terms of a trust of land and the options available to them to address those issues, Sara is an experienced and effective mediator of such disputes.
Recent work includes
• Advising a former partner as to the basis upon which he and other former partners continued to hold property occupied by the former partnership business
• Representing a fellow occupant of large residential premises who claimed a beneficial interest in those premises on the basis of a constructive trust and/or proprietary estoppel following the death of the legal owner
• Representing an alleged joint venturer seeking specific performance of a contract to acquire and develop property and alleging that the property was held on trust in circumstances where it was in fact acquired solely in the name of the other party.
• Advising the trustee in bankruptcy as to the competing property interests where claims of trust, estoppel and exchange of contracts were being raised by third parties