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.
Trusts & Estates
David has been involved in a number of pensions cases over the years. These include Krasner v Dennison (above, under the heading Insolvency) as well as:
- A forthcoming appeal to the Court of Appeal on the construction of the National Health Service Pensions Regulations 1995, where the principal issue is whether a scheme member’s estate acquires the member’s pension entitlement if the member retires, but dies before the expiry of a period equivalent to a period of annual leave not taken during the member’s lifetime.
- Representing a junior employee, who had been persuaded to accept the role of a trustee of a pension fund, and who, when the employer embarked on a “pensions liberation” scheme, became caught up in a claim by the Pensions Regulator and was made the subject of a freezing order.
- Representing, in an application to the Chancery Division, the administrators of a company scheme which was being wound up with a surplus. The issues were firstly whether there was a discretion to apply any of the surplus to the members of the scheme whose pensions were in payment, as opposed to the members whose receipt of pension benefits was prospective, and secondly whether any of the surplus could be applied to overcome sex inequality among the members of the scheme.
Reported under Leadenhall Independent Trustees Ltd v Welham [2004] All ER (D) 423 (Mar).
David has done many cases where trust law questions form a part of the questions in issue. He is also the author of the LexisNexis practice note on trustees’ negligence and he has done applications by trustees for the court to approve settlements on behalf of persons lacking capacity. He is engaged in a case to expand the investment powers of a trustee, whose statutory powers were excluded by a home-made will.
Qualifications
- BA, Syracuse University (USA)
Associations & Memberships
- Chancery Bar Association
- Professional Negligence Bar Association
- Property Bar Association
Publications
“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
Speaking Engagements
David delivers talks at Ten Old Square seminars as well as in-house seminars for chambers clients.
Edwards v Aurora Leasing Ltd. [2021] 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.
