Public Trustee v Harrison & Ors, Court of Appeal - Chancery Division, February 02, 2018, [2018] EWHC 166 (Ch)

Issuing Organization:Chancery Division
Actores:Public Trustee v Harrison & Ors
Resolution Date:February 02, 2018
 
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Claim No. HC-2017-001356

Neutral Citation Number: [2018] EWHC 166 (Ch)

IN THE HIGH COURT OF JUSTICE

BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES (ChD)

PROPERTY TRUSTS AND PROBATE LIST

The High Court of Court of Justice

Rolls Building

Fetter Lane

London EC4A 1NL

Date: 2 February 2018

Before :

THE HONOURABLE MR. JUSTICE MARCUS SMITH

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Mr. Edward Hewitt (instructed by Royds Withy King) for the Claimant

Ms. Sarah Bayliss (instructed by McLoughlin & Co.) for the First and Second Defendants

The Third Defendant appeared in person, represented by her husband Dr. Harrison-Mills

Hearing dates: 17 January 2018

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JUDGMENTMr. Justice Marcus Smith:

A. INTRODUCTION

  1. By an indenture dated 6 March 1925 (the ``Indenture''), Charles Harrison settled certain property (the ``Fund'') on his daughter, Jeannette Harrison, on the terms and trusts set out in the Indenture. In order to avoid having to set out large portions of the Indenture in this Judgment, a copy of the Indenture is appended hereto.

  2. The Indenture was varied by a scheme (the ``Scheme'') approved by Mr. Justice Vaisey on 9 December 1953. Again, for ease of reference, a copy of the Scheme is appended to this Judgment.

  3. I shall refer to the Indenture as varied by the Scheme as the ``Settlement''.

  4. At all material times, the trustee of the Settlement was the public trustee. In this Part 8 claim, the public trustee now applies for directions under CPR 64.2(a) for the court to determine a question arising out of the operation of the Settlement in relation to a share of the Fund held by David Harrison, who died without leaving children.

  5. Jeannette Harrison herself died leaving no children. She was an only child. The settlor, her father, had a brother, referred to in the family tree before me as ``N/K Harrison''. N/K Harrison had 13 children, one of whom was James Harrison.

  6. James Harrison had two children, Jeffery Harrison and David Harrison. David Harrison, as I have noted, died without leaving any children. Jeffery Harrison is dead, but has two living children, Guy Harrison (the First Defendant) and Judy Mackay (the Second Defendant).

  7. The question that the public trustee seeks to have determined is whether, according to the terms of the Settlement, the share of David Harrison accrues to the share that was held for his brother, Jeffery Harrison, and so is payable to his (Jeffery's) children, the First and Second Defendants or whether David's share accrues to the shares of N/K Harrison's 13 children. I shall refer to David's share as the ``Disputed Share''.

  8. The persons comprising this latter group - described before me as the ``wider class'' - comprises some 31 persons, including the First and Second Defendants. Of the wider class:

    i) Obviously, the First and Second Defendants do not accept - indeed, they oppose - the claims advanced by the wider class.

    ii) Of the remaining 29 members of the wider class, some provision was made as to their representation in an order of Deputy Master Cousins dated 27 July 2017. Essentially:

    a) The persons listed in Schedule 1 to the order (the ``non-opposing beneficiaries'') do not oppose the Disputed Share passing to the First and Second Defendants. There is no reason for these five non-opposing beneficiaries to be joined to the proceedings.

    b) The first 15 persons listed in Schedule 2 Part A to the order consent to the sixteenth person there listed (the Third Defendant) representing them; to her doing so without herself being legally represented; through her husband, Dr. Harrison-Mills. By paragraph 11 of the order, the Third Defendant was appointed under CPR 19.7(2)(d)(ii) to represent these 15 persons.

    c) That leaves 8 persons of the wider class who have neither agreed to the passing of the Disputed Share to the First and Second Defendants nor agreed to being represented by the Third Defendant. Plainly, these persons need to be bound by any order consequential upon this judgment. Accordingly, at the outset of the hearing before me, I ordered that the Third Defendant be appointed under CPR 19.7(2)(d)(ii) to represent these persons also.

  9. This judgment considers the following points in the following order. First, Section B seeks to define precisely the nature of the Disputed Share. Secondly, Section C sets out the approach I take to the construction...

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