It has been a prolific few years for Zia Bhaloo QC. Sarah Jackman talks to her about her achievements and the evolution of the property bar.
One thing that couldn’t be said of Zia Bhaloo QC is that she lets the grass grow under her feet. Named Chambers & Partners real estate silk of the year in 2016, Bhaloo has managed to juggle a varied practice with the demands of heading Enterprise Chambers (she stepped down at the end of 2017 after completing her five-year term) and chairing the Property Bar Association (PBA) – an organisation that she led from 2014 to the end of 2017.
Not that she feels able to take the credit for the work undertaken by the PBA over that period. “Although I chaired it, all thanks have to go to the committee; in particular, Peter Petts, the secretary. Up until this year [when the process changes and the newly appointed chair and vice-chair will run it] it is the committee, in particular the secretary, who actually runs it.”
Nonetheless, there’s no disputing that the organisation has flourished over that period. Membership stands at around 400, which, she thinks, “is not a bad number when one considers the size of the bar and that you have to certify that more than 50% of your practice is property” in order to become a member.
In that time, the PBA significantly expanded its links with the Property Litigation Association (PLA), a development that Bhaloo considers “really important”. “Our members work with their members. We are in the same industry. We are consulted on the same law reforms. A closer link and a pooling of resources is tremendously helpful,” she says.
It is an approach that has, she thinks, helped to foster the links between the junior PLA and the junior property bar, which she sees as “vital if the bar as a profession is going to continue”. Another initiative – joint training with the PLA – has similarly reinforced the links between the two professions, enabling PBA members to benefit from a more rounded debate and, crucially, she thinks, for barristers “to know what the solicitor and surveyor think are the issues on the ground”.
Law reform
But perhaps the area where collaboration has had greatest effect is in relation to law reform. One fairly recent example is the launch of the consultation on the Business and Property Courts. Despite the court’s name, it appeared to Bhaloo and Alison Hardy (then chair of the Property Litigation Association) that there wasn’t going to be a property list, which “came as something of a surprise”.
Bhaloo and Hardy were able to approach the chancellor with their respective members’ views and “the effect is that there is now – with trusts and probate – a property list”. This was important to PBA members: “The idea that we were going to have this court, but that property wasn’t going to have a place in it, didn’t seem right to us and happily the chancellor agreed.”
One other area that has exercised members recently – and which Bhaloo was able to raise for debate at the PBA conference with Master Bowles, HH Judge Waldon-Smith QC and Mrs Justice Proudman – is the treatment of property cases in the High Court. There was a concern among members that the High Court “did not want to hear property cases” and the Chancery Division wanted those cases pushed across to the County Court at Central London (CCCL).
While Bhaloo acknowledges that there is a “very good specialist list” at CCCL, with “experienced property and chancery judges” she believes that it’s important for significant property cases to continue to be dealt with at the High Court and for there to be some degree of flexibility in the case allocation process.
“We live on a small island. So whether it is development, rights of light or the particular use, property is a really important aspect of our lives here, the economy and the way in which people live and work. I cannot think of other areas which are more important and should therefore trump property cases in going to the Business and Property Courts.”
One particular concern for Bhaloo, though, is the need to guard the way in which the law of precedent is developed. “There needs to be High Court precedent so that other courts – county courts – will follow it.”
Specialist judges
Despite concerns over the allocation of cases, Bhaloo can see an argument for using more specialist judges, from which, she thinks, “most cases benefit”.
“It enables a trial to be managed and go more quickly. It’s much more likely that you will have a result that works on the ground.”
This was one of the main arguments put forward to support the Business and Property Courts, which opened in October 2017 – that it would be easier to allocate the right judge with the right expertise to a particular type of case.
Whether or not that has happened in practice is, she feels, “too early to say”, but it’s an important factor for her and a principle that is being tested in the CCCL, with the launch (in January this year) of a pilot scheme for unopposed business lease renewal claims issued there to go to the First-Tier Tribunal (Property Chamber) (FTT) for determination (see “All change for unopposed lease renewals”, EG, 17 November 2017, p76).
“The thing that is welcome is that FTT judges are very specialist, very experienced. They know how the [Landlord and Tenant Act 1954] works and they know how property as a whole works. The fact that they will be sitting with a valuer will be very welcome.”
As Bhaloo gets into the swing of 2018 – a year in which she intends to develop her work as a mediator – she reflects on the evolution of the bar in recent years and on the legacy of Lord Neuberger, who stepped down as president of the Supreme Court in August 2017 (see “Farewell Lord Neuberger”, EG, 2 September 2017, p54).
New attitudes
At a recent PBA event chaired by Bhaloo, Neuberger discussed the change in attitude towards property work in recent years, as well as the change in the approach of judges – two themes that found strong resonance with her. “There was a time when landlord and tenant work wasn’t regarded as proper chancery work. That has changed. It’s right up there with everything else. That appreciation of the importance of property work has been a feature of the Neuberger years.”
Along, she thinks, with a progressive change in the attitude of judges. “We would go off to county courts and the judge might be less or more informed about property or other issues. The one thing that was constant was that he would always be rather grumpy and shout at you. That has changed and I’m sure that people like Lord Neuberger have had an effect. He has always been charming. He hasn’t been afflicted by an illness called ‘judge-itis’ and his manner has led by example.”
Although Bhaloo acknowledges the Court of Appeal can still be “a daunting and boisterous” place to appear, it’s clear that she’s a strong advocate, passionate about her industry and fazed by little. As she redoubles her energy on her practice, there’s no doubt that she will rise to the challenge of law reform and adapt to the changing face of the property bar.
Career highlights of Zia Bhaloo QC
1992: Joins Enterprise Chambers and develops a property expertise.
2010: Takes silk.
2013: Becomes head of Enterprise Chambers. Steps down in November 2017 after completing her term and is succeeded by Ian Mayes QC.
2014: Appointed chair of the Property Bar Association – a position held until the end of 2017. She is succeeded by Joanne Wicks QC, who will run the organisation with the newly appointed vice-chair, Brie Stevens-Hoare QC, under a revised process.
2016: Named Chambers & Partners real estate silk of the year.
Key cases include: Lynn Shellfish Ltd v Loose [2016] UKSC 14; [2016] PLSCS 109, which concerned the extent of an exclusive prescriptive right to take shellfish from a stretch of shore on the eastern side of the Wash; Gavin v Community Housing Association Ltd [2013] EWCA Civ 580; [2013] PLSCS 120, which involved acting for the successful landlord in a claim by a tenant for damages for nuisance and breach of covenant and acting for the successful landlord in a claim for collective enfranchisement of units let on short-term lets in Smith v Jafton Properties Ltd [2013] 2 EGLR 204.
