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Jonathan Small QC

Called 1990Silk 2006

Jonathan Small QC

Jonathan Small QC is widely recognised for his advocacy skills: he accepts instructions to appear in a large range of commercial property disputes, both in the UK and abroad. Additionally a large part of his practice comprises advisory work.

  • Recent Cases

    House of Lords and Privy Council

    • Lancashire v MS Frontier [2012] UKPC 42 (privy council: validity of recession of an agreement for lease)
    • Gopaul v Vitra Imam Baksh [2012] UKPC 1 (chattel houses in Trinidad & Tobago)
    • Higgs v Leshel [2009] UKPC 47 (adverse possession)
    • Ghaidan v Mendoza [2004] UKHL 30 (human rights: discrimination & s3)
    • J. A. Pye (Oxford) Limited v Graham [2003] 1 AC 347 HL (adverse possession).

    Court of Appeal

    • Jones v First Greater Western [2014] EWCA Civ 301 (rights over the taxi-rank at Bristol Temple Meads station)
    • Cook v Mortgage Business [2012] EWCA Civ 17 (priorities of equity release leaseback schemes)
    • Samarenko v Dawn Hill House [2011] EWCA Civ 1445 (vendor & purchaser: deposits)
    • Rees v Peters [2011] EWCA Civ 836 (restrictive covenants)
    • The Bridgewater Canal Co v Geo Networks [2011] 1 WLR 1487 (telecoms)
    • Patel v K & J Restaurants [2010] EWCA Civ 1211 (relief from forfeiture for immoral user)
    • Adealon v london Borough of Merton [2007] 1 WLR 1898 (easements of necessity)
    • Joint London v Mount Cook Land, The Times 11.10.05 (whether Pret-a-Manger a "victualler" or a "coffee house")
    • Patel v London Borough of Brent (No.2) [2005] 31 EG 82 (section 106 agreements)
    • Bridehall Estates v St George, The Times, 4.3.04 (overage provisions)
    • Bluestorm v Portvale [2004] 22 EG 142 (damages from tenant for non-payment of service charges)
    • Cinnamon v Morgan [2002] 2 P&CR 10, CA (service charges and management costs)
    • Grossman v Hooper [2001] 2 EGLR 82 CA (conveyancing: section 2 of the 1989 Act)

    High Court

    • Harris v Berkeley Strategic Land [2014] EWHC 3355 (Ch) (overage)
    • Cooper v Albion [2013] EWHC 2993 (Ch) (adverse possession of river, riparian rights, mooring rights, consipracy and misfeasance in public office)
    • Re89 Holland Park [2013] EWHC 391 (Ch) (restrictive covenant to control development)
    • St Anselm v Slaughter & May [2013] EWHC 125 (Ch) (professional negligence; limitation)
    • Canonical v TLT Millbank [2012] EWHC 3710 (Ch) (construction of tenant’s break clause; appropriation of rent)
    • Aviva v Kestrel (LTL: 11.11.2011) (jurisdiction of expert to decide questions of law)
    • Miscela v Coffee Republic [2011] EWHC 1637 (QB) (franchising agreements)
    • Extra MSA v Accor [2011] EWHC 775 (Ch) (challenging the recission of an agreement for sale of land) 
    • PGF v Royal & Sun Alliance [2010] EWHC 1459 (dilapidations claim re building next to Lloyds of London)
    • Roadside Group v Zara [2010] 33 EG 70 (Restrictive covenants in commercial leases)
    • William Page v BNP Paribas [2009] L&TR 8 (construction of option to renew lease)
    • EDF Energy v BOH [2009] EWHC 3193 (split reversions and surrender/merger of part)
    • Cameron v Rolls-Royce (2008) L & TR 22 (lease or licence in commercial context)
    • London Borough of Bexley v Manson Maurice [2007] 10 EG 184 (estoppel and highways).
    • Patel v London Borough of Brent (No.1) [2003] All ER (D) 67 (purpose trusts & secret profits)
    • Commission for the New Towns v Cooper [1995] Ch 259 (rectification; section 2 of the 1989 Act).
  • Areas Recently Instructed

    Jonathan has recently been instructed in the following areas:

    Restrictive covenants, rights of way and rights of light

    Jonathan advises many developers and owners on both easements and the true ambit of restrictive covenants. He appeared for the Defendant recently in 89 Holland Park v Hicks (2013) where the court held that the neighbouring owners could not unreasonably withhold consent to development plans. In the recent Couper litigation (2013) he acted for the Port of London Authority which successfully resisted all the Claimants’ many claims against it, including mooring rights.

    Development, financing and overage agreements

    Much of Jonathan’s work consists of advising on the true construction of development, financing and overage provisions. He appeared for the Claimant in the High Court in Dorchester v Frogmore (2013), which concerned the limits of a lender’s powers under a complex suite of interlocking finance and overage agreements.

    Vendor and Purchaser disputes

    During the recession Jonathan acted for many parties to development agreements (typically in the context of purchasers attempting to extricate themselves). He appeared in the Privy Council in such a case in Lancashire v MS Frontier (2012) and also in the High Court in Accor v MS Extra (2011). Both cases concerned the true construction of termination provisions. Samarenko v Dawn Hill in the Court of Appeal (2011) concerned the effect of the late payment of a deposit.

    Adverse possession

    Having been instructed in the leading case of Pye v Graham, Jonathan is frequently instructed in adverse possession litigation. He appeared for the successful appellant in the Privy Council in Higgs v Lechal (2009) and also for Port of London Authority in the recent Couper litigation (2013) which established, among other things, that it was not possible adversely to possess the River Thames.


    Jonathan frequently advises both land owners and operators in the knotty problems which can arise under the Electronic Communications Code, particularly where development of the site is in the offing. He appeared for the landowner in the most recent case on the Electronic Communications Code: Bridgewater v Geo Networks (2011).

    Professional negligence

    Jonathan has been instructed in a number of claims against solicitors including the following. He recently appeared for claimant who successfully resisted an attempt to strike out the negligence claim on the grounds that the limitation period had expired: St Anselm v Slaughter & May (2013). He is currently retained in an action concerning the drafting of a lease for a newly-developed hotel. He is also retained in a claim against both solicitors and counsel for the negligent conduct of a trial.

    Landlord and tenant disputes

    Naturally Jonathan appears and advises in a variety of landlord and tenant work. For example he appeared in one of the recent tenant break clause cases (Canonical v Millbank (2012)); he was recently retained by Associated Newspapers in their case concerning the unreasonable withholding of consent to assign their Docklands’ print works; he acted for the successful landlord in the court of appeal case of Patel v K & J Restaurants (2011), concerning forfeiture.


    Jonathan appeared for the successful claimant in the well known case of PGF v Royal Sun Alliance (2010), one of the largest dilapidation claims in recent years.

    Valuation disputes

    Jonathan often appears in rent review cases. Valuation principals also arise in overage disputes and, in one such case, he successfully challenged the finality of an expert’s decision: Aviva v Kestrel (2012).

    Hong Kong and Commonwealth

    Jonathan has also advised on various property-related matters in Hong Kong (for the Government and for private companies) and various islands in the Caribbean including the Bahamas, Bermuda, St Vincent and Trinidad & Tobago. He has appeared on several occasions in the privy Council and was also recently called to the Bar in Bermuda where he conducted a ratings case, in both their Supreme Court and Court of Appeal.

"He has expertise in restrictive covenants and rights of way."Legal 500 2018 (Property Litigation)
"Focuses on a variety of legal matters linked to development, and regularly handles overage, rights of way and purchase disputes. Strengths: 'Approachable and provides advice in an easily digestible format'.” Chambers UK Guide 2018 (Real Estate Litigation)
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