Thornton & Ors v Woodhouse & Anor, Court of Appeal - Chancery Division, April 10, 2017, [2017] EWHC 769 (Ch)

Resolution Date:April 10, 2017
Issuing Organization:Chancery Division
Actores:Thornton & Ors v Woodhouse & Anor
 
FREE EXCERPT

1

Neutral Citation Number: [2017] EWHC 769 (Ch)

Case No: HC-2014-001358

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

IN THE ESTATE OF RICHARD CHICHELEY THORNTON

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 10 April 2017

Before:

RICHARD SPEARMAN Q.C.

(sitting as a Deputy Judge of the Chancery Division)

- - - - - - - - - - - - - - - - - - - - -

Between:

- - - - - - - - - - - - - - - - - - - - -

- - - - - - - - - - - - - - - - - - - - -

Richard Dew (instructed by Charles Russell Speechlys LLP) for the Claimants

The First Defendant did not appear and was not represented

Duncan Macpherson and Francis Ng (instructed by Barlow Robbins LLP) for the Second Defendant

Hearing dates: 22, 23, 25, 28-30 November 2016, and 1, 2, 5-8, 14 December 2016

- - - - - - - - - - - - - - - - - - - - -

Judgment

RICHARD SPEARMAN Q.C.:

Introduction and nature of the dispute

  1. This is a probate action concerning the Will dated 16 September 2009 (``the 2009 Will'') of Richard Chicheley Thornton (``the Testator'' or ``Richard''), who died on 21 January 2013. The Claimants are the executors of the 2009 Will and are, respectively, the Testator's only son from his first marriage (``Henry''), the Testator's second wife and widow (``Susie'') and two solicitors (``Mr Isaacs'' and ``Mr Sutch''). The Claimants seek a grant of probate in solemn form pronouncing for the 2009 Will. Henry, Mr Isaacs and Mr Sutch are also the executors of the Testator's earlier Will dated 27 April 2001 (``the 2001 Will'').

  2. The Defendants (``Mary'' and ``Lucy'') are the Testator's two daughters from his first marriage, to Jennifer Thornton (``Jennifer''), which lasted from 1958 to 1989. The Testator married Susie in 1989, shortly after his divorce from Jennifer was made final, and they remained married until his death. There were no children of that marriage. Mary entered a caveat in respect of the Testator's estate on 14 May 2013, renewed it on 14 November 2013, and withdrew it on 9 May 2014. However, on the previous day, 8 May 2014, Lucy had entered a new caveat. The Claimants asked Lucy to remove that caveat by 23 May 2014, and, when she did not do so, warned it on 27 May 2014 and began the present proceedings by Claim Form dated 11 September 2014. Mary has taken no part in the proceedings, other than as a witness for Lucy, and was not represented at the trial.

  3. Lucy disputes the validity of the 2009 Will, and, by her counterclaim, she seeks (i) a pronouncement in favour of the 2001 Will, (ii) the removal of the Claimants as executors and trustees under whichever Will is held to be valid, and (iii) a grant in solemn form of letters of administration to an independent solicitor with whichever Will is held to be valid annexed. Lucy's case is based on the following grounds:

    (1) The 2009 Will is not formally valid, that is to say it does not comply with the requirements set out in section 9 of the Wills Act 1837 (``Formal Validity'').

    (2) The Testator did not know and approve of the contents of the 2009 Will at the time he executed it (``Knowledge and Approval'').

    (3) The 2009 Will was procured by the undue influence of Susie (``Undue Influence'').

    (4) The Claimants should be removed as executors and trustees pursuant to section 50 of the Administration of Justice Act 1985 or the inherent jurisdiction of the Court (``Removal of Executors and Trustees'').

  4. The last of these claims was modified during the course of the trial to seek the removal of Susie and Henry alone. This occurred on the eleventh day of the hearing (the twelfth day of the trial, including the day allocated for, and spent on, pre-reading), and after Mr Isaacs and Mr Sutch had been called as witnesses and had been cross-examined. According to her Counsel's written Closing Submissions, however, while Lucy accepts that ``she is not able to remove'' Mr Isaacs and Mr Sutch, nevertheless ``she is concerned that they have been excessively supportive of Susie's position in this case'' such that ``she would be much more confident ...if an additional independent executor and trustee were added ... [although she] would be happy with an appointment made from the private client department of Stephenson Harwood LLP [i.e. the firm of solicitors with which Mr Isaacs and Mr Sutch have each had a longstanding relationship]''.

  5. During the course of the morning of the first day of the hearing, I caught sight of Mr Isaacs when he stood up to leave court, and realised then that I had previously had some contact with him. First, he was a member of a Solicitors' Disciplinary Tribunal before which I appeared several years ago, representing a solicitor charged with professional misconduct in connection with certain coal miners' compensation claims. Second, and sometime after the Tribunal had delivered its decision in those proceedings, I had spoken to Mr Isaacs briefly about the outcome when I was a guest at the Garrick Club and my host (who knew him because of some remote and complex family connection) introduced me to him. I mentioned these matters to the parties before the midday adjournment, and said that if they gave rise to any concerns then Counsel should raise those concerns with me at 2pm. No concerns were raised at that time, and I proceeded to hear the case that afternoon. I did not sit in this case on the following day because I had a pre-existing commitment to deal with post-judgment arguments in another case.

  6. When I resumed sitting in this case on the day after that, however, an application was made on behalf of Lucy that I should recuse myself, on the grounds (in short) that (a) Mr Isaacs and Mr Sutch were members of the Garrick Club, the Testator had been a member of that Club, and other witnesses had some connection to the Club, and (b) the fact that I had been invited to lunch there and no doubt hoped to be invited again gave rise to concerns of apparent bias, on the basis of a possible perception that I would or might be influenced to refrain from voicing criticism of members of the Garrick Club in a way that I would not be inhibited from doing if I had no such connection with it. I dismissed that application, but not before it had taken up an entire day of court time.

  7. As the application was not based on any concerns about my previous contact with Mr Isaacs, but instead on the premise that I belonged to a problematic category of Judges (namely, in short, persons who have some connection with the Garrick Club, even if only as occasional guests), I asked Lucy's Counsel why this ground of objection had not been raised in advance of the hearing (for example, when Lucy made an application to Mann J on 16 November 2016 for the trial to be adjourned). If concerns of this kind are raised in advance, it may be possible as a matter of reasonable expediency and without necessarily having to explore in detail whether or not they are well founded, to arrange for the Judge allocated to try the case to be drawn from outside the relevant category. I was told that the objection had not been raised earlier because it had not been thought of earlier. I do not regard this as a satisfactory explanation. In the event, because Lucy's objections to Mr Isaacs and Mr Sutch dissipated during the course of the trial, the principal ground on which the application had been made also fell away.

  8. On the tenth day of the hearing, another day of court time was taken up with an application for permission to amend Lucy's statement of case to plead fraud. Because Lucy's legal team did not feel able to make this application on her behalf, this application involved Lucy dispensing with their services so that she could make it in person, and then re-engaging them after it had been made, and, in the event, dismissed.

  9. My rulings on these applications are the subject of separate judgments. I mention them here solely as part of the background relating to the conduct of this litigation.

  10. Richard Dew appeared for the Claimants, and Duncan Macpherson and Francis Ng appeared for Lucy. I am grateful to them for their clear and helpful submissions.

    The Testator's career, assets, and family

  11. Richard was born on 5 July 1931. He was educated at Stowe, read law at Keble College, Oxford, and was called to the Bar before commencing a career in finance.

  12. In 1969, Tom Griffin and Richard founded GT [i.e. Griffin and Thornton] Investment Management (``GT''), a successful fund management business.

  13. In 1971, Richard set up trusts for each of his three children (``the 1971 Trusts''), into which he settled half his shares in GT. In 1983, Richard left GT following a boardroom coup and sold his shares for around £6m: £3m went into the 1971 Trusts; he gave £1m to the Thornton Foundation, a charity; and he retained the remaining £2m (pre-tax).

  14. The sum of £1m which Richard placed in trust for each of Mary, Lucy and Henry in this way in 1983 would be worth approximately £3.25m in present day terms.

  15. In 1983, Richard set up what ultimately became Thornton & Co Ltd, a Jersey holding company for his investment management business. A Hong Kong subsidiary was also set up as the principal investment management operating company. The business of Thornton & Co Ltd was sold successfully to Dresdner Bank in 1988.

  16. Mr Isaacs assisted Richard in resolving his departure from GT, and Mr Isaacs and Mr Sutch assisted Richard in setting up his new business in 1983. These matters are illustrative of Richard's long-term relationships with each of them, and reflect the fact that these relationships went back decades before his death in 2013. Further illustrations of this, and indeed of Richard's wish that Henry should be one of the executors and trustees of his estate, are provided by Richard's earlier Wills. By a Will dated 15 November 1993, Richard appointed Mr Isaacs and Henry and Anthony Chancellor as executors and trustees, and by a Will dated 21 November 1996, Richard appointed Mr Isaacs, Henry and Mr Sutch as executors and trustees.

  17. After...

To continue reading

REQUEST YOUR TRIAL