Clement Johnson v The Estate of Harrington Johnson
| Jurisdiction | England & Wales |
| Judgment Date | 12 October 2006 |
| Neutral Citation | [2006] EWHC 2568 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: HC04C02764 |
| Date | 12 October 2006 |
[2006] EWHC 2568 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr P Morgan QC
(Sitting as a Deputy Judge of the High Court)
Case No: HC04C02764
The Claimant appeared in person.
Mr D Ohrenstein (counsel) appeared for the Defendant.
Approved Judgment
The Deputy Judge:
Before dealing with the facts of this case in more detail, it is useful to give the following general introduction.
Mrs Cacheta Louise Johnson died on 21st August 2002. For many years, she had been the owner of a large house at 38 Cecilia Road, London E8. Indeed, that house was her principal asset. In the last few years of her life, Mrs Cacheta Johnson was involved in, or apparently involved in, executing a number of legal documents. On the face of the documents, on 3rd February 1999, Mrs Johnson made her will and the house was to be part of the residuary estate disposed of by that will. In May 2001, Mrs Johnson went to solicitors for the purpose of making a codicil to that will, although it is not clear that she ever executed the draft codicil. On 21st December 1999, she made a second will, leaving all of her estate, including the house, to her son, Harrington Johnson. If valid, the second will would have revoked the first will.
In May 2001, Mrs Johnson executed a deed of gift of the house to her son, Harrington Johnson, and his wife, Evelyn Johnson. In April 2002, Harrington and Evelyn Johnson sold the house to a Gloria Edwards for the sum of £150,000 and Gloria Edwards mortgaged the house to the Halifax Building Society.
Mrs Johnson had another son, Clement Johnson. Clement Johnson is the Claimant in these proceedings. Clement Johnson was not a beneficiary under either of the wills which I have referred to. He feels aggrieved by the sequence of events I have referred to. Indeed, he contends that the various documents are not to be taken at face value.
What he seeks to do is this. First, to establish that the December 1999 will was invalid; secondly, to establish that the February 1999 will was also invalid and that his mother died intestate; thirdly, to obtain a grant of administration of his mother's estate; fourthly, to apply as administrator of that estate to set aside the deed of gift of May 2001; and, fifthly, to set aside the sale to Gloria Edwards. He seeks to achieve these results by asserting that his mother did not know and approve the contents of the wills, that she did not have capacity to execute the deed of gift and that the purported sale to Gloria Edwards was a sham, as Gloria Edwards does not exist and the name is an alias for Evelyn Johnson.
In the proceedings which are before me, the only claim by Clement Johnson is for the purpose of establishing that the wills were invalid and that his mother died intestate.
No claim to set aside the deed of gift has yet been made and, as I understand it, cannot be made by Clement Johnson until he can bring that claim in the name of the estate of Cacheta Johnson. Therefore, any issues which might arise as to the deed of gift and as to the sale to Gloria Edwards are not before the Court on this occasion. This is not a completely satisfactory state of affairs, as Clement Johnson wants to launch a general attack on the conduct of Harrington and Evelyn Johnson and he wants to use what he regards as their inappropriate behaviour, in relation to the deed of gift and the sale to Gloria Edwards, as relevant material for the purposes of judging their conduct in 1999 and for an attack on the credibility of the evidence of Evelyn Johnson, who was a witness at the trial before me. I did permit Clement Johnson to cross-examine Evelyn Johnson as to credit by referring to his allegations in relation to the deed of gift and in relation to the sale to Gloria Edwards. However, the fact remains that the issues which might arise in relation to the deed of gift and the sale to Gloria Edwards are not technically before this Court in this trial.
In these proceedings, Mr Clement Johnson is acting in person. I will refer in a moment to the fact that he earlier was advised by solicitors and counsel. The First Defendant, and the only active Defendant, is the estate of Harrington Johnson. Harrington Johnson survived his mother, but has since died, some time in July 2003. He died intestate and, for the purposes of these proceedings only, his estate is represented by his widow, Evelyn Johnson, as a result of an order which was earlier made in these proceedings.
As I have said, Clement Johnson is in person. He was previously publicly funded, but that funding was withdrawn and he did not appeal the withdrawal of funding. On the first day of the trial, he applied for an adjournment to enable him to obtain legal representation. He could only achieve legal representation if he had his public funding restored or if he persuaded a solicitor to take on his case on a no win/no fee basis.
On the first morning of the trial, I investigated with Mr Clement Johnson in some detail the prospect of him obtaining legal representation. Having done so, I came to the conclusion that there was no sufficient prospect of him obtaining legal representation for an adjourned hearing of this action. Accordingly, I refused the application for an adjournment and I gave a short judgment setting out my reasons for doing so.
I deal next with the question of representation on the part of Evelyn Johnson. In the past, Evelyn Johnson had been publicly funded and she had the assistance of solicitors and counsel. Like Clement Johnson, her public funding was also withdrawn. She initially retained the same solicitors and counsel on a fee paying basis, but she appeared on the first day of the trial as a litigant in person. On the second and subsequent days of the trial, she has been represented by counsel, Mr Ohrenstein, who has appeared for her pro bono. I ought to record that I am grateful to Mr Ohrenstein for the considerable assistance he has been able to give the Court. The case would have been more difficult to try and determine without his assistance. Although Mr Clement Johnson may feel that the representation has been one-sided, I ought to record that Mr Ohrenstein has behaved in accordance with the best standards of the Bar and has drawn to my attention matters which might have been said on behalf of Clement Johnson if he had been represented at this hearing.
The next matter I deal with is Clement Johnson's application to amend his Particulars of Claim. The background to this is, as I have stated already, Mrs Johnson died on 21st August 2002. The proceedings were brought in August 2004. Mr Clement Johnson had at that stage the benefit of advice from solicitors and counsel. In the witness statement he prepared in support of the application there is considerable technical skill shown by the solicitors in understanding the legal issues and the consequences of the various outcomes.
The Particulars of Claim put forward on behalf of Mr Clement Johnson positively asserted that Mrs Johnson had executed the will of December 1999. In other words, the Particulars of Claim did not assert that the signature was other than her signature. The Particulars of Claim were later amended to refer to the first will of February 1999, but the amended Particulars of Claim similarly proceeded on the basis that Cacheta Johnson had executed both wills. The pleadings did not challenge the testamentary capacity of Cacheta Johnson. The Rules of Court require that an allegation of that kind is specifically pleaded: see Civil Procedure Rules, Rule 57.7.
On the second day of the hearing, Clement Johnson applied for permission to amend his Particulars of Claim. He wished to allege, first, that Cacheta Johnson did not execute the will of December 1999; secondly, that Cacheta Johnson did not execute the will of February 1999; and thirdly, that Cacheta Johnson did not have testamentary capacity in either February 1999 or December 1999. Mr Clement Johnson, in effect and in detail, explained the evidence he wanted to rely upon in support of these pleas.
I was able to assess something of the weight of that evidence at the time he made the application and, indeed, since. I refused permission to amend and I gave a short judgment explaining my reasons. I will restate them in summary for the purpose of this present judgment. The reasons related to, first, the delay in seeking to amend the Particulars of Claim; secondly, the absence of any adequate explanation for that delay; thirdly, the prejudice to the First Defendant if the amendments were allowed at this stage; and, fourthly, and I will refer to this matter again, the underlying weakness of the case which Mr Clement Johnson wished to put forward for non-execution of the wills and for lack of testamentary capacity on the part of Cacheta Johnson.
With those general matters stated, I can now move to a more detailed statement of the facts of the matter. Mrs Cacheta Johnson was born in Jamaica on 16th November 1916. She came to Britain with her husband, Mr Johnson, in 1955. Mr and Mrs Johnson bought 38 Cecilia Road, London E8 in around 1956. Mrs Cacheta Johnson had seven children. It is only necessary to refer to the last three of those children. Of the last three, the eldest was a daughter, Gloria Smith, who married and became Gloria Martin. The next child was Clement Johnson, the Claimant and the youngest child was Harrington Johnson.
Cacheta Johnson worked until her retirement in her sixties. I do not have a very clear picture of what the nature of her work was, but...
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