George Lyons and Another v Andrene Kerr-Robinson
| Jurisdiction | England & Wales |
| Judge | Master Matthews |
| Judgment Date | 24 August 2016 |
| Neutral Citation | [2016] EWHC 2137 (Ch) |
| Date | 24 August 2016 |
| Court | Chancery Division |
| Docket Number | Case No: HC-2015-004967 |
[2016] EWHC 2137 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Master Matthews
Case No: HC-2015-004967
Charles Scott (instructed by John Bays & Co) for the Claimants
Elizabeth White (instructed by Sharman Law LLP) for the Defendant
Hearing dates: 14 and 20 July 2016
Introduction
This is my judgment on part of an application made by the Claimants by notice dated 12 February 2016. That application sought an order that Janet Atkinson, as the interim administrator of the estate of Cynthia Maria Lyons deceased, be appointed to administer that estate fully. The draft order attached to the notice also contained a number of further paragraphs each seeking relief in connection with that administration.
On 19 February 2016 the application came before me. I granted the main relief then sought, as well as some of the rest, but, so far as related to paragraphs 2–4 and 7 of the draft order, I adjourned the hearing of the application to 1 June 2016. In late April that hearing was vacated and relisted for 14 July 2016. On that date Charles Scott of counsel appeared for the Claimants, Owen Curry of counsel for the administrator, and Elizabeth White of counsel for the Defendant. Unfortunately, the time available proved insufficient, and the hearing went over to 20 July 2016, when, the administrator needing no longer to be involved, only Mr Scott and Ms White were present.
Background
The deceased was born in Jamaica in 1927, and died in 2011, domiciled in England. She left neither a widower nor a civil partner (she had been married, but later divorced), nor issue or parents living. She died intestate, leaving property both in Jamaica and in England. There were competing parties for the grant of Letters of Administration to the estate of the deceased, and caveats were entered. Caveats notwithstanding, the Defendant obtained a grant on 15 February 2012. Apparently realising its error, the Principal Registry wrote to the Defendant on 20 March 2012 requiring the return of the grant. But it was not returned.
According to her first witness statement, the Defendant was also born in Jamaica, but moved to the UK in 1998. She is a qualified accountant. Her evidence is that in 2012 she was working for "a leading UK defence equipment manufacturer". In his first affidavit in these proceedings, at [20], Mr John Bays, the Claimants' solicitor, says that the Defendant is a director of a company dealing in financial services. In her first witness statement (at [66]) the Defendant objects to his "researching and exposing [her] private life…" But the factual correctness of the statement of Mr Bays is unchallenged. She claims to be a niece of the half-blood of the deceased.
Procedure
The claim was begun by claim form issued on 27 March 2012. The First Claimant claimed an interest in the estate as a person entitled to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975. The Second Claimant claimed an interest in the estate under the intestacy rules as a nephew of the half-blood. The Claimants alleged that the Defendant was not related to the deceased by blood at all, and had wrongfully appropriated assets of the deceased's estate to herself. They sought the revocation of the grant to the Defendant and their own appointment as administrators.
The Claimants sought interim relief to prevent possible dissipation of the estate in the meantime, including the appointment of an interim administrator under the Senior Courts Act 1981, s 117. Their application came before Arnold J on 4 April 2016, by which time the Defendant had instructed Blueprint Property Lawyers Limited ("Blueprint") to represent her. I will come back to Blueprint. At that hearing the Defendant gave certain undertakings to the court in lieu of an injunction, to which I shall also have to return. The judge ordered that the application proceed as an application by order and gave directions in respect of that.
The application by order eventually came before Michael Brindle QC sitting as a deputy judge, in October and November 2012. On 7 December 2012, he gave judgment, revoking the grant under the Senior Courts Act 1981, s 121, on the grounds of error, and ordering the appointment of a local solicitor (to be nominated by the President of the Law Society) as interim administrator of the estate. He also ordered that the Defendant deliver the property or assets of the estate to the interim administrator and not dispose of or deal with the estate assets in the meantime. Finally, he ordered the Defendant to pay 70% of the Claimants' costs of the application, not to be charged to the Estate, and ordered the Defendant to pay £20,000 on account of those costs within 28 days.
The deputy judge refused the Defendant permission to appeal. Nonetheless, Blueprint applied on her behalf to the Court of Appeal for permission to appeal, filing an appellant's notice on 28 December 2012. (In her evidence the Defendant says that it was never explained to her why this was done: see her second witness statement, [40].) At the Defendant's request, on 23 January 2013 the Court granted an extension of time for filing the appeal bundle and skeletons. That application was ultimately dismissed by consent on 22 April 2013.
The parties attended by counsel before Master Price on 6 February 2013 and obtained directions for the appointment of the interim administrator. There was a further hearing on 25 February 2013 before Sales J, to deal with the question of the purchase monies to arise from the sale of the deceased's house at 111 Nightingale Road, Wood Green, London N22 ("Nightingale Road"). Janet Atkinson was appointed interim administrator on the same day. She obtained a grant of Letters of Administration on 12 December 2013.
The Defendant did not pay the £20,000 on account of costs to the Claimants, and on 5 March 2013 Master Bragge, on the application of the Claimants, made an interim charging order against the Defendant's property to secure the debt. Ultimately this debt was paid, but the Defendant says in her evidence that she did not pay it (see her second witness statement, [44]), and that she assumes that either Blueprint or Mr Okoronkwo did. This is confirmed by an email from Mrs Buket Yilmaz, a director of Fortis Rose, to the SRA dated 6 January 2015, which says that in April 2013 Mr Gondo arranged with Fortis Rose to be put in funds by Blueprint so that Fortis Rose could pay the Claimants' solicitors.
It was thus in April 2013 that the Defendant instructed Fortis Rose (solicitors) to act in place of Blueprint. Fortis Rose ceased to act for the Defendant in February 2016, and she is now represented by another firm of solicitors, Sharman Law. I also record that in October 2013 the Council of Licensed Conveyancers intervened in the practice of Blueprint. The Council of Licensed Conveyancers has apparently disclaimed any liability to indemnify the Estate, as the losses it suffered took place in the course of probate and litigation work, which Blueprint was not authorised to carry on. Although one of the employees of Blueprint was a solicitor (Perdip Bhachu), the Solicitors Regulation Authority has similarly disclaimed any liability.
The issues on this application
The issues arising from paragraphs 2–4 and 7 of the draft order concern monies which were assets of the estate but which have now been lost, mostly because they were paid by the Defendant to Blueprint, and that company has since gone into insolvent liquidation. There is also a smaller sum relating to disputed expenses. In summary form, the two matters arise in this way.
First, the Defendant had opened a bank account with Halifax in her own name and had paid into it monies obtained from the deceased's estate. From that account she paid the sum of £59,657.71 by CHAPS transfer on 28 March 2012 to Blueprint's client account. She made a second payment from that account to Blueprint's client account, also by CHAPS transfer dated 26 May 2012, in the sum of £27,107.41. These two payments total £86,765.12.
Second, in addition the Defendant transferred two sums of £2000 and £6000 on 2 and 7 March 2012 respectively from the Halifax account to her own current account, repaying £5000 and £100 to that account on the 22 and 28 March respectively. The difference between the in—and outpayments is £2900. The Claimants seek an order that the Defendant pay this sum also. The question is whether there are any proper Estate expenses which go to reduce this.
For completeness, I add that Blueprint also received a third payment of £30,000 as the deposit on the sale of Nightingale Road. The order of Sales J permitted Blueprint to deduct the costs and expenses of the sale and ordered it to remit the balance to the interim administrator. Blueprint in fact transferred £19,537.20 to the interim administrator, claiming costs of the sale of £10,462.80. As I understand the matter, no point is now taken in respect of this third payment to Blueprint.
Resolving these issues is the more difficult because Blueprint went into insolvent liquidation in early 2014, and there was an intervention in its practice and an investigation into its affairs by the Council of Licensed Conveyancers. The Defendant was not able to retrieve her file, and some relevant documents have not been located. She also says that she has been unable to obtain documents from Fortis Rose, her former solicitors, because they have refused to release files until their bill is paid. Accordingly, I have to do the best I can with the material that is available.
Use of estate monies to pay litigation costs
First I...
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