David Schmitz has a wealth of experience in most areas of Chancery and Commercial practice, and this background makes him particularly adept at dealing with complex problems that require knowledge of several fields. To take a recent example, he has advised a national charity, with a large property portfolio, on how to get in the title to the freehold and leasehold interests of a property, where the titles are unregistered, the trusts pre-date TLATA and the ownership of both interests is vested in an associated company which has been dissolved.
His practice has an emphasis on property litigation and on professional negligence cases involving property, but he also deals with private client work, in particular pensions and charities, and with cases of insolvency, undue influence and cohabitation.
He is a qualified mediator.
He is working, when time permits, on a book on Art and the Law, and has prepared draft chapters on copyright, ownership, interference with ownership, claims by and against states, claims arising out of crimes and other acts of states, and liability for misattribution.
From 2010 to 2014 he was a borough councillor in Haringey, London and served on the planning committee for three years.
Insolvency & Bankruptcy
David has acted in a number of matters where substantial questions in the law of insolvency have arisen. These include:
- An appeal to the Court of Appeal, settled just before the hearing, where the issue was whether, under the Insolvency Rules and the terms of the IVA in question, a mortgagee, voting in favour of the IVA, had thereby abandoned its security over a property for which it was seeking possession.
- An appeal to the Court of Appeal for the setting aside of a statutory demand, where the point in issue was whether a contract of guarantee, set out in a single document, can bind the signatories if any of the persons, who are named in the document as a guarantor, has yet to sign it.
- An appeal to the Court of Appeal which considered whether, in an application to set aside a statutory demand on the ground that the debt is disputed, the Court ought to refuse the application, if the ground was not raised in an earlier, successful, application to set aside an earlier demand for the same debt, on a different ground.
Harvey v Dunbar Assets PLC  B.P.I.R. 722. An appeal to the Court of Appeal where it was successfully contended that the debt was disputed on substantial grounds because the guarantee was set out in a single document and because there was credible evidence that one of the parties had not signed it.
Harvey v Dunbar Assets PLC (No. 2)  B.P.I.R. 450. An appeal to the Court of Appeal which considered whether, in an application to set aside a statutory demand because there is a substantial defence to the claim, the Court ought to apply the doctrines of res judicata and issue estoppel and thereby refuse to allow if the defence was not raised in an earlier, successful, application to set aside an earlier demand for the same debt, on a different ground. The Court also considered whether any part of any decision can create an issue estoppel if the decision is subsequently overturned on appeal.
Krasner v Dennison  Ch 76. An appeal contesting a trustee in bankruptcy’s assertion that, absent any statutory exception, a bankrupt’s personal pension passes entirely to his trustee in bankruptcy, notwithstanding tax legislation which imposes penalties upon alienation of those rights and notwithstanding any contractual restriction purporting to prohibit such alienation. Note: legislative protection of pensions was brought into force shortly after the decision, and the case itself was settled after the appellant obtained permission to appeal to the House of Lords.
- BA, Syracuse University (USA)
Associations & Memberships
- Chancery Bar Association
- Professional Negligence Bar Association
- Property Bar Association
“Trust disputes – claims in negligence against trustees for their administration of the trust.” Lexis PSL Private Client (2019, 2022)
“Student Lettings, Frustration and the Pandemic” Legalease March 2021 (available on the Ten Old Square website).
Atkin’s Court Forms Vol 37 (1) – Specific Performance (2015) (2020)
“Neighbourhood Watch” (the effect of Coventry v Lawrence on nuisance claims where there have been changes in the locality)”: Property Law Journal Dec. 2017 and Jan. 2018
“Threat to Independence (Charities and Gagging Clauses)” Legalease April and May 2014
“An Unresolved Question – “Whether the Will Must Be Present when the Testator Acknowledges his Signature”: Trusts and Estates Law and Tax Journal Sept. 2013
David delivers talks at Ten Old Square seminars as well as in-house seminars for chambers clients.
Edwards v Aurora Leasing Ltd.  EWHC96 (CH): The circumstances where a trustee in bankruptcy can recover a payment or a preference that is made by a bankrupt between the presentation of the bankruptcy petition and the making of the bankruptcy order, and the surprising contrast with the situation with regard to payments or preferences made before the petition, or with regard to payments or preferences made by a company. Ten Old Square blog post (2021). Available on Ten Old Square website.
Business and Property Court Pilot Scheme on Disclosure: Pre action to Close of Statements of Case and e-Disclosure (2019)
Fire Safety and Cladding in Blocks of Flats: Liability and Prevention (2018) A wide-ranging review of the relevant common law and statutes.
“Digging the Dirt on Basements” (2017). A survey of the issues arising out of excavations of basements.
“Powers and Duties of Mortgagees, Receivers and Administrators in the Management and Sale of Property” 2016.
David Schmitz is a self-employed, independent barrister whose practice is governed by the Code of Conduct of the Bar of England and Wales. He is regulated by The Bar Standards Board [Bar Ref 16939] and is fully insured with the Bar Mutual Indemnity Fund [BMIF Ref 2360/024] to provide legal services, please refer to the BMIF website for full details of the world-wide cover provided. He is registered for VAT under the reference 446971904.