Ben Leeson v Donald McPherson
| Jurisdiction | England & Wales |
| Judge | Cawson |
| Judgment Date | 11 October 2023 |
| Neutral Citation | [2023] EWHC 2502 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: BL-2021-MAN-000033 |
[2023] EWHC 2502 (Ch)
HHJ Cawson KC
SITTING AS A JUDGE OF THE HIGH COURT
Case No: BL-2021-MAN-000033
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS IN MANCHESTER
PROPERTY, TRUSTS AND PROBATE LIST (Ch)
IN THE ESTATE OF PAULA ELIZABETH LEESON DECEASED (PROPATE)
Manchester Civil Justice Centre
1 Bridge Street West,
Manchester M60 9DJ
Tom Gosling (instructed by Glaisyers Solicitors LLP) for the Claimants
The Defendant was not present or represented
Hearing date: 29 September 2023
Approved Judgment
Remote hand-down: This judgment was handed down remotely at 10.30 am on Wednesday 11 October 2023 by circulation to the parties or their representatives by email and by release to The National Archives.
HHJ Cawson KC
HHJ Cawson KC:
Introduction
The issue that arises for consideration is as to whether the Court should accede to a request made by Holborn Adams, Solicitors acting for the Claimants, in respect of the inquest ( “the Inquest”) of the late Paula Elizabeth Leeson (“ Ms Leeson”) by email dated 6 July 2023 for permission for a document recording facts agreed between the parties to the present proceedings (“ the Agreed Facts”) to be provided to HM Area Coroner, Mrs Alison Mutch (“ the Coroner”) “to assist her with the inquest process”. I have taken this as encompassing a request for permission for the Agreed Facts to enter into the “funnel” of evidence filtered into the inquisitorial process of the Inquest, and thus available to be referred to, as appropriate, by interested parties to the Inquest in the course thereof.
The Claimants are represented by Mr Tom Gosling of Counsel. The Defendant, Donald McPherson (“ Mr McPherson”) is neither present nor represented in circumstances to which I shall return.
Background
It is first necessary to set out the background to the circumstances in which the request dated 6 July 2023 came to be made.
Ms Leeson married Mr McPherson in 2014. She died on 6 June 2017, aged 47, having drowned in an indoor swimming pool in remote holiday accommodation in Denmark where she had been on holiday with Mr McPherson from 3 June 2017. Medical evidence showed that Ms Leeson had drowned but had sustained injuries which were consistent with being caused either by unlawful force being applied by Mr McPherson to cause her to drown, or alternatively attempts made by Mr McPherson to rescue and resuscitate her after he had found Ms Leeson in the swimming pool.
Mr McPherson was prosecuted for the murder of Ms Leeson. It was McPherson's defence that Ms Leeson had drowned accidentally whilst he was asleep, and that the injuries to Ms Leeson were caused by his attempts to resuscitate her. Mr McPherson was acquitted at a trial held in March 2021 after the trial judge had upheld a submission of no case to answer. In accepting Mr McPherson's submission of no case to answer, Goose J said this: “There are two available possibilities on the evidence:-firstly, that the defendant physically restrained the deceased underwater or otherwise overcame her in a struggle or pushed her to cause her to drown; secondly, the deceased drowned by accident, whether by a trip, fall or a faint, causing her to fall into the water to drown. Whilst the first of those alternatives is clearly more likely, that does not mean that a jury, on the face of the pathological evidence alone, could be sure of it.”
The case for the prosecution had been that Mr McPherson was the beneficiary of excessive life and travel insurance policies which he had taken out on the life of Ms Leeson in the sum of about £3.5 million. It was the prosecution's case that although the medical evidence was consistent with either accident or unlawful killing, the fact of the excessive life insurance policies, and other circumstantial evidence, including the deletion of messages from Mr McPherson's and Ms Leeson's mobile phones following Ms Leeson's death, meant that the jury could be sure that Ms Leeson had been murdered.
The Inquest had been opened prior to the murder trial. Following the conclusion of the murder trial, it was resumed, at which stage the Coroner considered the scope of the Inquest. She concluded that the scope of the factual inquiry at the Inquest should be restricted to the temporal period 3 to 6 June 2017, i.e., whilst Mr McPherson and Ms Leeson had been on holiday in Denmark. The effect of this ruling was to exclude from the evidence to be considered in determining Ms Leeson's cause of death much of the circumstantial evidence that had been relied upon by the prosecution at the murder trial, including the evidence about Mr McPherson taking out the excessive insurance policies.
The decision of the Coroner was challenged by way of judicial review by the Second Claimant in the present proceedings, Ms Leeson's Father, William Leeson (“ William Leeson”). It was William Leeson's case that the decision of the Coroner to so restrict the scope of the Inquest was irrational and unlawful on the basis that the exclusion of much of the circumstantial evidence would mean that evidence critical to the determination of how Ms Leeson died (accident or unlawful killing) would be left out of account, thereby frustrating the statutory purpose of the Coroners and Justice Act 2009.
The challenge to the Coroner's decision was heard by a Divisional Court (Dingemans LJ, Fordham J and HHJ Teague KC (Chief Coroner)). William Leeson's challenge was upheld, and the decision of the Coroner to limit the scope of the Inquest quashed, with the matter being remitted to the Coroner to revisit the ruling as to the scope of the Inquest in the light of the decision of the Divisional Court, reported as R (on the application of William Leeson) v His Majesty's Area Coroner for Manchester South v Donald McPherson, Scottish Widows and others [2023] EWHC 62 (Admin).
In his judgment, Dingemans LJ, at [35], said this:
“35. It will be for the Coroner to determine at the remitted hearing how the relevant evidence summarised by Goose J. in his ruling on the submission of no case to answer might be adduced in a proportionate manner. Reference was made in the course of the hearing on 20 December 2022 to rule 23 of the Rules. Rule 23 provides for the admission of written evidence, and might enable evidence about the insurance policies to be given in a proportionate manner. This is because there does not appear to be much dispute about the underlying facts about the insurance policies, and the relevant dispute is the extent to which those underlying facts make a conclusion of unlawful killing more likely than a conclusion of accidental death. Goose J. summarised evidence already given in the Crown Court trial, so transcripts and documentary evidence will be available. Such an approach would mean that there is no obligation on the Coroner to adduce “rooms full of evidence” to which reference was made in the submissions.”
The Inquest is not now due to be heard until after the trial of the present proceedings next year, the Coroner having concluded, so I am informed by Mr Gosling, that findings in the present proceedings may be relevant to the Inquest. However, a Pre-Inquest Review (“ the PIR”) is listed to be heard on 4 December 2023, at which consideration will be given to the scope of the evidence likely to be adduced at the Inquest.
The present proceedings were commenced on 7 April 2021, shortly after Mr McPherson's acquittal.
The Claimants claim that Mr McPherson unlawfully killed Ms Leeson by drowning her in the swimming pool at the remote holiday accommodation in Denmark referred to above. The Claimants allege that the killing was motivated by financial gain, with Mr McPherson standing to benefit from c£3.974m in insurance policies written on Ms Leeson's life, as well as from Ms Leeson's pension and over £500,000 in jointly held assets.
In addition, the Claimants allege that Mr McPherson dishonestly forged signatures upon Ms Leeson's Will, as well as documentation relating to trusts described as the LV Trust and the Scottish Widows Trust.
The issue as to whether Mr McPherson unlawfully killed Ms Leeson is relevant for the purposes of the present proceedings because a finding of unlawful killing would prevent Mr McPherson from taking, as against Ms Leeson's estate, Ms Leeson's share of the jointly held properties and, as understood, other assets. Of course, in the present civil proceedings the issue as to unlawful killing would fall to be determined on the balance of probabilities, albeit with the burden of proof being upon the Claimants, rather than in accordance with the criminal standard of proof applicable to the criminal proceedings that would have required the Jury to be sure that Ms Leeson had been unlawfully killed by Mr McPherson.
It is the Claimants' case that Mr McPherson is a dishonest man and fraudster of long standing who has consistently lied and misrepresented his background and financial position for the purpose of making profit and acquiring assets. The Claimants point to what they say is a long history of dishonest acquisitiveness, the Defendant having been convicted of 32 criminal offences of dishonesty/fraud in three countries (New Zealand, Germany and the UK) between 1993 and 2008 (“ the Convictions”). The Convictions were pleaded in the Amended Particulars of Claim in the present proceedings and were admitted by Mr McPherson in his Defence.
By paragraph 1 of the Order of District Judge Richmond dated 24 August 2023, made on the hearing of an application in the present proceedings by the Claimants dated 18 May 2023, District Judge Richmond ordered that:
“1. Pursuant to s.7(3) of the Rehabilitation of Offender Act 1974 at the Trial of this claim the Claimants are permitted to admit into evidence the Defendant's...
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