Chappell v Somers & Blake (A Firm)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Neuberger |
| Judgment Date | 08 July 2003 |
| Neutral Citation | [2003] EWHC 1644 (Ch) |
| Docket Number | Case No: CL206363 |
| Court | Chancery Division |
| Date | 08 July 2003 |
[2003] EWHC 1644 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Neuberger
Case No: CL206363
APPEAL COURT REF: CC/2003/PTA/0177
Mr. Giles Harrap (instructed by Blake Lapthorn Linnell) for the Claimant/Respondent.
Mrs. Elspeth Talbot-Rice (instructed by Withers LLP) for the Defendant/Appellant.
Approved Judgment
Hearing dates: 27 th June 2003
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
1. This is an appeal brought by the defendant, Somers & Blake, a firm of Solicitors ("the Solicitors"), against the refusal of His Honour Judge Cowell to strike out part of the claim brought against them by Mrs Marceline Chappell, in her capacity as the executrix of the will of Nellie Price ("the deceased")
2. The facts of the case are as follows The deceased died on 24 December 1995. By clause 1 of her will ("the will"), dated 5 th April 1995, the deceased appointed Mrs Chappell as her sole executrix. By clause 2 of the will, the deceased made specific bequests totalling just over �20,000, and clauses 3 and 4 of her will involved other specific bequests. In clause 7 of the will, the deceased bequeathed and devised the residue of her estate to the Parochial Church Council of the Parish of St Mary's Church, St Mary's Road, South Ealing ("the PCC").
3. According to her pleaded case in these proceedings, it was in early January 1996 that Mrs Chappell instructed Somers & Blake ("the solicitors") "to act on her behalf in the administration of the estate of the deceased".
4. Mrs Chappell's pleaded case goes on to allege that she spoke to the solicitors on a number of occasions between 1996 and 2001 about the administration of the estate ("the estate"). In paragraph 19 of her particulars of claim, Mrs Chappell alleges that between the time that they were first instructed, in January 1996, and early April 2001 the solicitors were in breach of their contractual and tortious duties to Mrs Chappell in that, to put it shortly, they did absolutely nothing. In particular, she alleges that they failed to give her any advice, to ascertain the assets and liabilities of the estate, to obtain a grant of probate, to make enquiries with regard to title deeds, to respond to her requests for information and advice regarding properties in the estate, to pay legacies within the executor's year or at all, and to progress the administration of the estate at all.
5.
In these circumstances, in early April 2001, Mrs Chappell terminated the solicitors' retainer and went elsewhere for advice. As a result of this advice, Mrs Chappell applied for, and was granted, probate, and in due course she distributed the estate in accordance with the terms of the will. The residue of the estate included two properties, namely 37 Netherbury Road, London W5 and the Top Floor, 7 Winchester Street, London W3 ("the properties"). At the date of the deceased's death, according to Mrs Chappell's pleaded case, these properties were unlet, and they remained unlet until after they were transferred to the PCC, pursuant to the provisions of clause 7 of the will.
6. In the "Schedule of Losses" appended to Mrs Chappell's particulars of claim, the loss alleged to have been suffered as a result of the solicitor's alleged breach, of duty so far as it relates to the properties, is expressed in these terms:
"The continuing delay [in applying for probate, and consequential administering and devolving of the deceased's estate] deprived the estate of income from part of its capital namely [the properties]. �The net loss claimed is put forward as a figure that enables a court to make a fair appraisal of the loss of income from the delay in a situation in which in the absence of any breach the estate would have been duly wound up and the properties assented to the residuary beneficiary by 1 st January 1997 or in any event before 1 st July 1997 or sold with the entire proceeds yielding investment income by 1 st January 1997 or in any event before 1 st July 97."
7. Mrs Chappell's claim for damages against the solicitors, in so far as it relates to the properties, is based on the following proposition. First, had the solicitors acted in accordance with their duty, the properties would have been assented to the PCC by 1 st January (or at any rate by 1 st July) 1997, which is approximately 5 years earlier than they were actually assented to the PCC. Secondly, income would then have been earned from the properties (either by renting them out, or by selling them and enjoying interest on the proceeds of sale) for that period of 5 years. Thirdly, the loss of income suffered for that period is properly the liability of the solicitors, owing to their failure to advise properly, promptly, or at all, over the period that they were instructed by Mrs Chappell.
8. As this is an application to strike out the claim (albeit only in so far as it relates to the damages relating to the properties), I proceed on the basis that the allegations made in the particulars of claim are correct. Further, as it is not suggested (nor, I think, could it be suggested) by the solicitors that the claim against them based on breach of contract and negligence is bound to fail, I must also assume that the factual allegations of breach of duty are justified.
9. Mrs Elspeth Talbot-Rice, who appears for the solicitors, contends that, both as a matter of principle, and in light of the way in which it is pleaded, Mr Chappell's claim against the solicitors, in so far as it is based on loss of income from the properties, is bound to fail, and should accordingly be struck out. This contention is based on the proposition that any alleged loss must have been suffered by the PCC, in its capacity as the devisee of the properties, and not by Mrs Chappell, in her capacity as executrix of the deceased's estate. Such a contention is supported by the fact that, if the solicitors had not been in breach of duty as alleged, with the consequence of the deceased's estate being wound up five years earlier than it was, then the properties would have become vested in the PCC five years earlier than actually occurred. Thus, it is said that it is the PCC, and not Mrs Chappell, who would have received any income from those properties over the five years, either by renting them out, or by selling them and investing the proceeds.
10. Judge Cowell appears to have accepted this argument, but he nonetheless refused to strike out the relevant part of the pleading on the grounds that a claim somewhat along the lines pleaded might nonetheless succeed. He said that the PCC might seek to claim damages from Mrs Chappell, arising from her failure to administer the estate efficiently or properly, with the result that the properties were not vested in the PCC until 2002, and in those circumstances the PCC might seek to recover damages for their loss of income from the properties during the very period pleaded in the present particulars of claim. The Judge considered that, on this basis, a claim by Mrs Chappell against the solicitors could succeed, because she should be able to obtain an indemnity from the solicitors in respect of any such liability as she might have to the PCC.
11. Mr Giles Harrap, who appears for Mrs Chappell does not seek to support this reasoning. In my opinion, he is correct. First, as a matter of fact, there was and is no suggestion that the PCC is even contemplating bringing proceedings against Mrs Chappell. On the contrary. Since the decision of Judge Cowell, the only involvement of the PCC has been to indicate that it is prepared to be joined as a party in these proceedings, if that is necessary for Mrs Chappell's claim to be properly constituted. Quite apart from this, as Mrs Talbot-Rice points out, Mrs Chappell's claim as pleaded does not rely on any liability which she has, or might have, to the PCC; nor does it seek any indemnity in relation to such potential liability. Further, it is clear from the correspondence between the parties that it is common ground that no claim could be, or is being, brought by Mrs Chappell on this basis.
12. Over and above this, it appears to me that, as a matter of law, a person who is appointed executor under a will cannot be held liable for any losses which accrue to the estate or to the beneficiaries under the will, as a result of a prolonged delay before the will is proved. That this is the law appears to me to receive support from the decision of the Court of Appeal in In Re Stevens [1898] 1 Ch 162. The point is most clearly made by Vaughan Williams LJ after the second break of paragraph at 177, I believe the same point is made, albeit not so clearly, and perhaps a little more tentatively, in the last paragraph of the judgment of Chitty LJ at 174; in the last paragraph of his judgment on 170, Lindley MR left the point open. It seems to me that Harman J took the same view in Cancer Research Campaign -vErnest Brown & Co [1998] PNLR 592 at 609D to 6l0B.
13. Although this result may appear at first sight to be surprising, it is explained, as Mrs Talbot-Rice submits, by the fact that a person is not under a duty to accept an appointment as an executor, indeed, many persons appointed executors in wills are unaware of their appointment until after the testator has died. In those circumstances, one can see some basis for the principle. As Mrs Talbot-Rice also points out, a beneficiary, who thinks that an executor is not moving swiftly enough to obtain a grant of probate, can either apply to the Principal Probate Registry under Rule 47 of the ...
To continue reading
Request your trial
-
Colour Quest Ltd v Total Downstream UK Plc (also Shell U.K. Ltd & others v Total UK Ltd and Another)
...Rep 505; affirmed [1989] Lloyds Rep 568, which Total did know in the present case. Should the law of tort be any different? 139 Chappell v Somers & Blake [2004] Ch 19 is an apposite example. An executrix, who was in a position analogous to a trustee, sued solicitors both in contract and ......
-
Malkins Nominees Ltd and Societe Financiere Mirelis Sa and Julian Holy and Maycrown Developments Ltd
...was thinking of what might be the outcome had the claim to damages arisen in tort. 52 The other authority relied on by Mr Thom is Chappell v. Somers & Blake [2004] Ch 19. In that case the claimant was the sole executrix of a will. She retained the defendant firm of solicitors to act on her ......
-
Peter Alexander Hope Matthews V. Hunter And Robertson Limited
...courts had considered the question of whether an executor could claim damages on behalf of beneficiaries: Chappell v Somers & Blake [2004] Ch 19, but that is not the pursuer's case here. [10] Having reminded me that the office of executor in Scots law is a purely administrative one: Wilson ......
-
Catriona Margaret Mackintosh And Others V. Philip Alexander Morrice's Executors
...black hole (G.U.S. Property Management v Littlewoods Mail Order Stores 1982 SC (HL) 157, Lord Keith at 177; Chappell v Somers & Blake [2003] EWHC 1644 (Ch), [2004] Ch 19, Neuburger J at para 16-19). The defenders' contention was that there had been a loss but no one had a title to recover i......
-
Conditions, Warranties, and Repudiatory Breach
...of non-monetary 97 See Chapter 22. 98 See generally PD Maddaugh & JD McCamus, The Law of Restitution , 2d ed (Aurora: Canada Law Book, 2004) ch 19:200. 99 See Chapter 24 . THE LAW OF CONTR ACTS 740 benefits conferred under a contract discharged by breach, the total failure of the considera......
-
Ambivalence, Contradiction, and Symbiosis: Carers’ and Mental Health Users’ Rights
...For an excellent analysis of the full range of rights to challenge, see Clements(2004: ch. 19) 8. Equality Act 2006, s. 1. Available at http://www.opsi.gov.uk/ACTS/acts2006/ukpga_20060003_en.pdf.9. R (A and B, X and Y) v East Sussex County Council and the Disability RightsCommission [2003] ......