St Clair v King & Anor, Court of Appeal - Chancery Division, March 28, 2018, [2018] EWHC 682 (Ch)

Resolution Date:March 28, 2018
Issuing Organization:Chancery Division
Actores:St Clair v King & Anor
 
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Neutral Citation Number: [2018] EWHC 682 (Ch)

Appeal Ref: CH/2017/000040

Case No: HC-2016-000523

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 28/03/2018

Before :

MR ANDREW SUTCLIFFE QC

sitting as a Judge of the High Court

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Between :

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MR STEPHEN ACTON (instructed under the Direct Access Scheme) for the Claimant

MS EMMA HARGEAVES (instructed by Kiteleys Solicitors) for the Defendants

Hearing dates: 29 and 30 November 2017

Further written submissions: 15 December 2017 and 4, 9 and 18 January 2018

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Judgment Approved

2

MR ANDREW SUTCLIFFE QC :

Introduction

  1. There are two matters before the court. The first is the Claimant's appeal (permission to appeal having been granted by Mr Justice Newey on 18 July 2017) against the decision of Master Price given on 18 January 2017 pursuant to which the Master struck out the Claimant's claim in its entirety with costs to be assessed on an indemnity basis. The second is the Claimant's application to amend the claim form and particulars of claim. The two matters are closely connected since the Claimant relies on her application to amend as part of her grounds of appeal.

  2. The Claimant appeared before the Master in person and has been represented on this appeal by Mr Stephen Acton. The Defendants were represented both before the Master and on this appeal by Miss Emma Hargreaves.

  3. The Claimant is the step-daughter of Jean Lech who died on 12 January 2012 (``the Deceased''). The Deceased was the third wife of the Claimant's father (``Mr Lech'') who died on 27 October 2008. The Defendants are the named executors under the Deceased's will dated 20 May 2009 (``the May 2009 will'').

  4. The Claimant and her adult daughter Carmen were the principal beneficiaries of the Deceased's previous wills made in 2006 and 2007 prior to the death of Mr Lech. By the May 2009 will and a previous will made in April 2009 (together ``the 2009 wills''), both wills being made after Mr Lech's death, the Deceased disinherited the Claimant and her daughter and replaced them with the First Defendant as the named beneficiary of the residuary estate and the Second Defendant as legatee of a £10,000 bequest. The First Defendant is the son of the Deceased's brother. The Second Defendant was a friend of the Deceased as well as her former carer. The Claimant's case is that all or most of the assets in the Deceased's estate derived from Mr Lech, gifted to the Deceased before his death or in his last will under which the Deceased was his principal beneficiary.

  5. The claim form was issued on 18 February 2016 and disputed the validity of the Deceased's will on what were said to be seven interconnecting grounds, namely, (1) breach of trust, (2) what was called promissory estoppel but was intended to allege proprietary estoppel, (3) undue influence, (4) testamentary incapacity, (5) solicitor's negligence, (6) want of knowledge and approval and (7) fraud. The claim form was accompanied by particulars of claim settled by the Claimant herself.

  6. On 22 November 2016, the Claimant sought permission to amend her particulars of claim. The draft amendment made revisions only to the breach of trust claim. It was this version of the particulars of claim that was considered and struck out by the Master at the hearing on 18 January 2017.

  7. In the Claimant's revised grounds of appeal dated 4 May 2017, she accepts that the Master was right to strike out the claims alleging breach of trust, proprietary estoppel and solicitor's negligence (``the struck out claims'') but contends that he was wrong to strike out the claims alleging (1) undue influence, (2) lack of testamentary capacity, (3) want of knowledge and approval and (4) fraud. I shall refer to the first three of these claims as ``the pursued claims'' and to the fourth as ``the fraud claim''.

  8. By an application for permission to amend dated 5 May 2017, the Claimant seeks permission to rely upon a new draft amended claim form and a new draft amended particulars of claim settled by Mr Acton, which are designed to replace in their entirety the original claim form and previous versions of the particulars of claim. She seeks permission to pursue two new claims, not pleaded in the original claim form or previous versions of the particulars of claim, as follows: (1) a constructive trust arising from mutual wills and (2) a constructive trust arising from a breach of promise between the Deceased and the Claimant in her capacity as beneficiary of Mr Lech's will. I shall refer to these claims as ``the new claims''.

  9. The Claimant's grounds of appeal can be summarised as follows. First, she contends that the Master's decision was unjust because of a serious procedural or other irregularity, pursuant to CPR 52.21(3)(b) (``the procedural ground of appeal''). Second, she contends that the Master was wrong to conclude that the pursued claims and the fraud claim had no real prospect of success (``the substantive ground of appeal''). Third, she contends that the appeal should be allowed on the basis of her application for permission to amend which includes the new claims and asks the court to re-hear the application before the Master, rather than merely review it, pursuant to CPR 52.21(1)(b), on the grounds that it would be in the interests of justice to hold a re-hearing (``the re-hearing ground of appeal''). Finally, she contends that the Master was wrong to order her to pay costs on the indemnity as opposed to the standard basis (``the costs ground of appeal''). I shall address each of these grounds of appeal in turn.

    The procedural ground of appeal

  10. Pursuant to CPR 52.21(3)(b), an appeal court will allow an appeal where the decision of the lower court was unjust because of a serious procedural or other irregularity in the proceedings in the lower court. The Claimant contends that the Master ought not to have struck out the pursued claims and the fraud claim on the basis that they had no real prospect of success but instead should have adjourned the Defendants' strike out application in order to give her an opportunity to take legal advice and make a further application for permission to amend. In order to determine whether this ground of appeal is justified, it is necessary to consider in some detail the sequence of events leading up to the hearing before the Master on 18 January 2017.

  11. Prior to issuing her claim in February 2016, the Claimant was represented by Rollingsons Solicitors and her daughter Carmen was represented by Anthony Gold Solicitors. Both Rollingsons and Anthony Gold corresponded with the solicitor who drew up the 2009 wills, Mrs Rosalind Paterson Morgan, a partner in the firm of Brice Droogleever & Co. However, the Claimant acted in person when she came to issue her claim on 18 February 2016. Her particulars of claim ran to 38 pages and did not comply with CPR 16.4(1)(a) since they did not contain a concise statement of the facts on which she relied.

  12. On 5 May 2016 the Claimant made an application for summary judgment, apparently unsupported by a witness statement. On 27 June 2016, the Defendants' solicitor, Mr Ian Richards, made a witness statement principally complaining that his clients had not seen many of the documents that the Claimant had filed with the court. On 30 June 2016 Master Bowles dismissed the Claimant's application for summary judgment as well as the claim against the Second Defendant. It was subsequently accepted that the latter order should not have been made since the Second Defendant was a co-executor of the May 2009 will and therefore needed to be a party to the claim.

  13. On 20 July 2016 Master Price made an order of the court's own initiative providing for (1) the First Defendant to serve a defence, (2) all parties to file witness statements in compliance with CPR 57.5 and (3) a CMC to take place on 13 September 2016.

  14. On 25 August 2016 the First Defendant filed a defence complaining about the way the Claimant's claim had been presented and seeking an order that the court pronounce in favour of the validity of the May 2009 will in solemn form. The First Defendant's directions questionnaire dated 26 August 2016 indicated that he intended to make an application for the claim to be struck out. However, no such application was made until very shortly before the hearing that took place before the Master on 18 January 2017.

  15. It would appear that at some stage the CMC due to take place on 13 September 2016 was adjourned to be heard on 11 November 2016. On that date, the Claimant appeared before Master Price in person and Mr Richards represented the Defendants. The Master ordered the Claimant to issue and serve by 18 November 2016 an application to amend her particulars of claim and required the Defendants' solicitors to file and serve a letter by 16 December 2016 setting out the reasons why any amendment should not be permitted, together with any evidence to be relied on to be given by witness statement, exhibiting documents relied on. The Claimant was to file and serve any evidence in reply to the Defendants' solicitors' letter by 19 December 2016. The CMC was adjourned to 18 January 2017 with a time estimate of one day and directions were given for the parties to agree the contents of the hearing bundle and for the Defendants' solicitors to lodge the same no later than noon on 16 January 2017.

  16. The Claimant has provided the court with a witness statement dated 18 January 2018 giving her recollection of the hearing on 11 November 2016, which she states is drawn from detailed notes she made at the time in order to seek representation and guidance from a direct access barrister. She says that her understanding of what was ordered at that hearing was that she should issue an application to amend her breach of trust claim which she indicated she could do within 7 days. She says she received...

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