Guthrie v Morel & ors, Court of Appeal - Chancery Division, November 05, 2015, [2015] EWHC 3172 (Ch)

Resolution Date:November 05, 2015
Issuing Organization:Chancery Division
Actores:Guthrie v Morel & ors


Neutral Citation Number: [2015] EWHC 3172 (Ch)

Claim No HC 14E02810



Date: 05.11.2015

Before :

Mr John Baldwin QC

(sitting as a Judge of the Chancery Division)

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Between :

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Seth Cumming (instructed by Cooper Burnett) appeared on behalf of the Claimant.

Michael Jefferis (instructed by Hodkin & Company) appeared on behalf of the first and second Defendants.

Hearing date: 29th October 2015

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JUDGMENT1. This action concerns a bequest made in favour of the Claimant, Carol Guthrie, in the Will of Brian John Thomas Morel, deceased, dated 17 January 2003. The bequest is in these terms: ``My property 87 Loma Del Rey, Alcadesa, Spain I bequeath to Carol Guthrie''. Now, Mr Morel has never owned a property with the address 87 Loma Del Rey, Acadesa, Spain. He did, however, own two properties in Loma Del Rey, one with an address of 81 and the other with an address of 33. And the bequest in the Will immediately following that of 87 Loma Del Rey to Ms Guthrie was in relation to number 33. It is in these terms: ``My property 33 Loma Del Rey, Alcadesa, Spain I bequeath equally to my three sons''. So the issue in the action is whether the reference to 87 Loma Del Rey should be interpreted as meaning the property at 81 Loma Del Rey or not. The Defendants are the three sons of the deceased and they will benefit if there is a partial intestacy.

  1. Mr Morel died on 20 July 2011 and one of his executors, Mr Alan Nicoll, obtained a grant of probate on 23 August 2012. There is evidence that Mr Nicoll accepted Ms Guthrie's contention as to the proper construction of the bequest in her favour but it is common ground that he did not do anything in furtherance thereof.

  2. Sometime after the grant of probate, the first and second defendants became concerned about the delay in administering the estate and they applied for the removal of Mr Nicoll. On 23 August 2013 Master Bowles ordered that Mr Nicoll be removed and the defendants were appointed as administrators.

  3. In July 2014 Ms Guthrie issued a Part 8 Claim for a declaration as to the true construction of the Will or, in the alternative, an order for rectification pursuant to section 20(1) of the Administration of Justice Act 1982. At the hearing before me Mr Cumming, counsel for Ms Guthrie, conceded that if he could not succeed on his construction argument then he could not get summary judgment on rectification and, accordingly, there is no reason for me to say any more about that aspect of the case.

  4. Mr Cumming contends that the reference to 87 Loma Del Rey in the bequest in the Will in Ms Guthrie's favour was plainly intended to refer to the property at 81 Loma Del Rey. Ms Guthrie is confident of her position and makes this application pursuant to Part 24 of the CPR. The defendants resist her claim but only the first and second defendants have played a part in the action, the third defendant having failed to acknowledge service of the proceedings.

  5. Mr Cumming contends it is clear that by his Will the deceased was intending to deal with all his property, including his two properties in Loma Del Rey, and that, as a matter of construction, the words in the Will ``87 Loma Del Rey, Alcadesa, Spain'' were intended to mean and should be understood to mean the property at 81 Loma Del Rey, Alcadesa, Spain. The defendants, on the other hand, contend that the Will is clear on its face and that it is evident that the property at 81 Loma Del Rey was not provided for in the Will; that accordingly there is a partial intestacy and, as they are the beneficiaries under the intestacy provisions, 81 Loma Del Rey should become theirs. In any event, contend the defendants, this matter is definitely not suitable for summary judgment and the matter should go to trial with full disclosure and cross examination.

  6. Ms Guthrie has filed evidence as to the deceased's intentions based upon what the deceased said to her. The defendants do not accept the veracity of that evidence and contend that it should be the subject of cross examination at trial. In this circumstance Mr Cumming eschewed any reliance on this evidence and I have taken no account of it.

  7. The approach to summary judgment applications was summarised by Lewison J in Easyair Ltd v Opal Telecom [2009] EWHC 339 (Ch) in these terms:

    15 As Ms Anderson QC rightly reminded me, the court must be careful before giving summary judgment on a claim. The correct approach on applications by defendants is, in my judgment, as follows:

    i) The court must consider whether the claimant has a ``realistic'' as opposed to a ``fanciful'' prospect of success: Swain v Hillman [2001] 2 All ER 91;

    ii) A ``realistic'' claim is one that carries some degree of conviction. This means a claim that is more than merely arguable: ED & F Man Liquid Products v Patel [2003] EWCA Civ 472 at [8]

    iii) In reaching its conclusion the court must not conduct a ``mini-trial'': Swain v Hillman

    iv) This does not mean that the court must take at face value and without analysis everything that a claimant says in his statements before the court. In some cases it may be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporaneous documents: ED & F Man Liquid Products v Patel at [10]

    v) However, in reaching its conclusion the court must take into account not only the evidence actually placed before it on the application for summary judgment, but also the evidence that can reasonably be expected to be available at trial: Royal Brompton Hospital NHS Trust v Hammond (No 5) [2001] EWCA Civ 550 ;

    vi) Although a case may turn out at trial not to be really complicated, it does not follow that it should be decided without the fuller investigation into the facts at trial than is possible or permissible on summary judgment. Thus the court should hesitate about making a final decision without a trial, even where there is no obvious conflict of fact at the time of the application, where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case: Doncaster Pharmaceuticals Group Ltd v Bolton Pharmaceutical Co 100 Ltd [2007] FSR 63;

    vii) On the other hand it is not uncommon for an application under Part 24 to give rise to a short point of law or construction and, if the court is satisfied that it has before it all the evidence necessary for the proper determination of the question and that the parties have had an adequate opportunity to address it in argument, it should grasp the nettle and decide it. The reason is quite simple: if the respondent's case is bad in law, he will in truth have no real prospect of succeeding on his claim or successfully defending the claim against him, as the case may be. Similarly, if...

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