Charan-Jyothi Ramamurthie Naidoo v David Barton
| Jurisdiction | England & Wales |
| Judge | Cadwallader |
| Judgment Date | 08 March 2023 |
| Neutral Citation | [2023] EWHC 500 (Ch) |
| Docket Number | Case No: PT-2021-LIV-000035 |
| Court | Chancery Division |
[2023] EWHC 500 (Ch)
HHJ Cadwallader
sitting as a Judge of the High Court
Case No: PT-2021-LIV-000035
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS IN LIVERPOOL
PROPERTY, TRUSTS AND PROBATE LIST (ChD)
In the Estate of Nirmalathevie Naidoo
Liverpool Civil and Family Courts
35 Vernon Street,
Liverpool,
L2 2BX
Undue influence — mutual wills — fraudulent misrepresentation — mistake — laches
The following cases are referred to in the judgment:
Barclays Bank plc v O'Brien [1994] 1 AC 180
Charles v Fraser [2010] EWHC 2154 (Ch)
Fry v Densham-Smith [2010] EWCA Civ 1410
Great Peace Shipping Ltd and Tsavliris Salvage (International) Ltd [2002] EWCA Civ 1407
Hammond v Osborne [2002] EWCA Civ 885
Hatch v Hatch (1804) 9 Ves 292
Hourani v Thomson [2017] EWHC 432 (QB)
NT1 v Google LLC [2018] EWHC 799 (QB)
Pesticcio v Huet [2004] EWCA Civ 372
re Coomber [1911] 1 Ch 723
re Goodchild [1997] 1 WLR 1216
Re Hey, Walker v Gaskill [1914] P. 192
Royal Bank of Scotland Plc v Etridge (No.2) [2002] 2 AC 773
Sheikh v Malik [2018] EWHC 973 (Ch)
Thomas and Agnes Carvel Foundation v Carvel [2007] EWHC 1314 (Ch)
Thompson v Foy [2009] EWHC 1076
Turkey v Awadh [2005] EWCA Civ 382
Walsh v Greystone Financial Services Ltd [2019] EWHC 1719 (Ch)
Jordan Holland (instructed by Hill Dickinson LLP) for the Claimant
Joseph Chiffers (instructed by POCA Solicitors) for the Defendants
Hearing dates: 28, 29, 30 November, 1 and 2 December 2022
Introduction
Nirmalathevie Naidoo deceased (hereafter “Mrs Naidoo”) died on 10 February 2016. Her husband, Dr Govindarajaloo Ramamurthie Naidoo (“Dr Naidoo”) died on 12 January 1999. I am told that they had 2 daughters and 5 sons. David Barton (“Mr Barton”), who was formerly known as Ramamurthie Dasaratha Naidoo) is the second eldest son and third eldest child. He is the first defendant. His wife (“Mrs Barton”) is the second defendant. Charan-Jyothi Ramamurthie Naidoo (“Charan”), the claimant, is the sixth eldest child of Dr and Mrs Naidoo. He is a medical doctor, as are all his brothers save Mr Barton. No disrespect is intended by referring to some individuals by their first name in this judgment, or even by an abbreviation of their first name used in the family: this is simply for convenience.
This was the trial of Charan's claim, which was issued on 30 September 2021, for an order pronouncing in solemn form for the validity of Mrs Naidoo's will dated 21 July 2015 (“the 2015 Will”) by which he was appointed sole executor and beneficiary; rescission of any mutual wills agreement affecting the disposition of her estate (together, ‘the 2015 Will Claims’); and rescission of certain transactions undertaken during her life by Mrs Naidoo, or Mrs Naidoo and her husband, during their lives.
The trial
The trial took place from 28 November 2022 to 2 December 2022. Mr Barton, who is serving a term of imprisonment, attended remotely throughout, save on 30 November and 1 December 2022, when he attended in person to give his evidence under a production order. Otherwise, the trial took place in person.
At the trial, I had a number of electronic bundles of documents: the trial bundle of 2909 pages (and, separately, page 34 of the particulars of claim); the ‘supplemental bundle’ of 25 pages; the ‘supplemental Barton bundle’ of 199 pages; and the ‘transcripts bundle’ of 1349 pages (the impending disclosure of which was flagged up by the defendants' counsel on the morning of the second day of trial, but which was only produced on the fourth day).
I also had the benefit of skeleton arguments and written closing submissions from counsel for the claimant and for the defendants, and a paginated chronology for closing submissions from the claimant. I also had a joint authorities bundle, and several separate case reports in addition.
The claimant gave evidence himself and further relied on the evidence of Helen Stopforth (a companion of Mrs Naidoo), Faye Lowery (the solicitor concerned with the preparation and execution of the 2015 Will), and Nina Ferris (the solicitor conducting the claim on behalf of Charan, who gave evidence of what she had been told by a friend of Mrs Naidoo, Enid Aylmer). They were all cross-examined, apart from Ms Ferris.
The defendants each gave evidence and were cross-examined, and called no additional witnesses.
After the trial, with permission, the defendants filed the ‘Naidoo supplemental bundle 7.12. 22’ of 80 pages on 7 December 2022. This prompted supplemental written closing submissions from counsel for the claimant dated 8 December 2022, addressing that bundle, for which I had also given permission.
The issues
In submissions, the claimant's case was helpfully divided into 4 categories of relief:
(1) the 2015 Will Claims mentioned in paragraph 2 above;
(2) rescission of the transfer of 25,000 ordinary shares in Choiceclassic Ltd (‘Choiceclassic’) from Mrs Naidoo to Mr and Mrs Barton on 14 April 1992, and of the transfer of 6000 ordinary shares in the same company from Charan to Mr Barton on the same date, and consequential orders (‘ the Choiceclassic Claims’);
(3) rescission of the purported agreement between Mrs Naidoo and Mr and Mrs Barton on or about 18 February 2000 (‘the 2000 Agreement’) and consequential orders (‘ the 2000 Agreement claims’); and
(4) the rescission of 3 purported settlements made in or about 2000 by Mrs Naidoo (‘the Policy Trusts’) of 3 insurance policies (‘the Policies’) on the joint lives of Dr and Mrs Naidoo (‘ the Policy Trusts Claims’)
As to the 2015 Wills Claims, the mutual wills agreement was a purported agreement made between Dr and Mrs Naidoo in their purported wills dated 25 November 1998. Each of those wills appointed the spouse and Mr Barton executors, with Mrs Barton as a substitute executor, and provided that the residuary estate should pass to the surviving spouse absolutely, but if that party's spouse should fail to survive for 28 days then to Mr Barton absolutely, and if he did not survive for 28 days then to Mrs Barton. Each such will contained a declaration that it was intended to be mutual with the other (albeit Mrs Naidoo's 1998 will so provided under the heading ‘Declaration relating to non-mutuality of Wills’).
The claimant claims that the mutual wills agreement was vitiated by a common mistake on the part of Dr and Mrs Naidoo, namely the mistaken belief that entering into a mutual wills agreement would leave the survivor free to alter their will and to make alternative testamentary provision should their intention to leave their estate to Mr Barton change.
As to the 2000 Agreement Claims, the claimant's case is that the 2000 agreement was procured by the fraudulent misrepresentation of Mr Barton to Mrs Naidoo, firstly, that the effect of entering it would be that she would retain the beneficial interest in 1 Lulworth Rd and in the policies (‘the first representation’), and secondly that she did not need to read any part of the 2000 agreement other than the signature page, and was only required to sign that in the presence of a witness so that a judge in certain proceedings pursued by Mrs Naidoo against her nephew, Saantha Naidoo (“the Saantha proceedings”) could see a witnessed version of Mrs Naidoo's signature (‘the second representation’). The claim in fraud in respect of the first representation was not pursued at trial and was formally abandoned in closing, however.
Moreover, the claimant's case is that, if otherwise valid, the mutual wills agreement, the Choiceclassic transfers, the 2000 Agreement and the Policy Trusts were all procured by the undue influence of Mr Barton. Such undue influence is alleged to have been exercised by Mr Barton directly upon Dr and Mrs Naidoo or, in the case of the Choiceclassic transfer by Charan, either through Dr and Mrs Naidoo or, alternatively, directly.
In their defence, the defendants denied the validity of the 2015 Will and Charan's appointment as executor. They asserted the validity of the Policy Trusts, and that Mr Barton was the sole beneficiary of them. They denied that the mutual wills agreement or any of the disputed transactions should be set aside on the ground of undue influence. They relied on solicitors' advice from Pannone LLP that mutual wills should be drawn up, and the involvement of Addleshaw Goddard in drafting those wills. They relied on the advice of Cobbetts Solicitors in respect of the 1999 Agreement, which was a precursor of the 2000 Agreement, and in respect of the 2000 Agreement itself. They raised the defence of laches.
Standing
As claimant, Charan brings these proceedings in his capacity as executor of his late mother's 2015 Will and in his personal capacity. Charan obtained a grant of probate of the 2015 Will on 3 July 2017.
Restraint order
The relief sought by the claimant in respect of the disputed transactions is, primarily, rescission. On 4 February 2016 Mrs Justice Lang made a restraint order in the Administrative Court under the Criminal Justice Act 1988 which, among other things, prohibited Mr Barton from disposing of, dealing with, or diminishing the value of any of his assets at all; and prohibited Mrs Barton from dealing similarly with certain specified assets. That order, or a similar order, remains in place, as I understand it. It may be that rescission, the primary remedy sought, would not involve a breach of such an order; but since rescission may be granted upon terms, and if granted at all may involve orders directing the person against whom it is granted to re-transfer assets, I can see the potential for an order of the court in these...
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