Ghafoor v Cliff
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE DAVID RICHARDS,Mr Justice David Richards |
| Judgment Date | 11 April 2006 |
| Neutral Citation | [2006] EWHC 825 (Ch) |
| Docket Number | Case No: HC05C02139 |
| Court | Chancery Division |
| Date | 11 April 2006 |
[2006] EWHC 825 (Ch)
Mr Justice David Richards
Case No: HC05C02139
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Patrick Talbot QC and Andrew de la Rosa (instructed by Flint Bishop & Barnett) for the Claimants
Grant Crawford (instructed by SGC Solicitors) for the 1st and 2nd Defendants
T.J.B Dumont (instructed by Berryman Shacklock LLP) for the 3 rd Defendant
Hearing dates: 7 and 8 November 2005
Approved Judgment
The Honourable
Introduction
This judgment concerns the costs of an application by the claimants to revoke a grant of administration ad colligenda bona of the estate of Abdul Ghafoor, deceased. The grant was made in favour of the first and second defendants on 1 July 2005 at a time when they were also acting as solicitors to the third defendant. The grant was revoked (by consent) by an order made on 21 September 2005. The costs of the application were not agreed and were the subject of a later hearing, and further evidence and written submissions after the hearing.
Consideration of the issue of costs has required an examination of the merits of the claim for revocation of the grant. It remains the position of the defendants that the grant was properly made and that, although it became clear that revocation would be a sensible step, the claimants did not have good grounds for an order for revocation against the defendants' wishes. Where a claim has been compromised save as to costs,—it is within the court's discretion whether it will consider the substantive issues, and it was submitted by one of the defendants that I should not do so. However, it seemed to me that the issues here were such as to justify dealing with them, albeit only to determine the incidence of costs. It was also open to question whether there had in truth been a compromise.
The issues require a consideration of the proper procedure to be adopted on applications to probate registries under the Non-Contentious Probate Rules 1987 when it is clear that the circumstances of the case are, in ordinary language, highly contentious. In particular should such application be heard without notice, as happened in this case. Other issues involve the duties of disclosure on such applications, the notification of orders made to interested parties, and the need for impartiality in persons to whom grants of administration are made.
A grant ad colligenda bona is a limited grant of administration, enabling the grantee to safeguard the assets of the deceased within the jurisdiction of the court. It is a useful, sometimes vital, power enabling urgent steps to be taken at a time when it is not yet practicable to obtain a full grant of probate or administration. Applications for such grants are not normally controversial. Although falling within the jurisdiction of the High Court, they constitute "non-contentious" or common form probate business, assigned to the Principal Registry of the Family Division and the district probate registries. Applications must be supported by evidence, but they can be made speedily and following informal consultation with a registry. In uncontroversial cases, this is sensible and desirable.
The facts
Abdul Ghafoor died on 3 January 2005, aged 66, leaving a sizeable estate with assets in England and Wales, Jersey and Pakistan. He had lived, at least primarily, in England and Wales since the early 1960's. There is an issue as to his place of domicile at the time of his death. The claimants, Qamer, Shahid and Amjed Ghafoor, are his sons by his first marriage. The third defendant, Mrs Farooqi, is his daughter by the same marriage. All are resident and domiciled in England. Mr Ghafoor's first marriage was dissolved in 1980 and he remarried in 1986, but after a long period of separation this second marriage was dissolved in 1998. His second wife gave birth to a daughter in 1988 but, according to Qamer's evidence in these proceedings, Mr Ghafoor denied paternity and provided no financial support for her. He does, however, appear to have acknowledged paternity in the decree nisi for the dissolution of his second marriage. A claim by her for financial support under the Inheritance (Provision for Family and Dependants) Act 1975 (the 1975 Act) has been put forward in correspondence but proceedings have not as yet been issued. Neither she nor Mr Ghafoor's second wife have any direct involvement in the matters relevant to the present case.
Mr Ghafoor made a will on 3 February 1997, by which he left his entire estate to his four children by his first marriage in equal shares and appointed them as his executors. There is no challenge to the validity of the will.
The claimants all hold law degrees from British universities. Qamer is a solicitor and a partner in the firm of Flint Bishop and Barnett, specialising in chancery and commercial litigation. Shahid is a legal advisor with Barclays Bank's litigation and dispute department and Amjed currently works as a legal editor with a leading legal publisher. Mrs Farooqi, the eldest of Mr Ghafoor's children, is married to Dr Azhar Farooqi, a general medical practitioner in Leicester.
Following Mr Ghafoor's death, there was a meeting on 16 January 2005 of the claimants, Mrs Farooqi and her husband, to discuss matters relating to his estate. His affairs were complicated and the claimants' evidence is that they agreed an allocation of tasks among themselves, with Qamer taking on the majority. Qamer says that Mr Ghafoor had always entrusted his legal affairs to him and discussed legal and financial matters with him, so he had greater knowledge of Mr Ghafoor's assets. The evidence shows that Qamer and his brothers have undertaken a substantial amount of work since then.
The main significance of the meeting for present purposes lies in a discussion about the establishment of a trust which would hold all the assets comprised in his estate. The notes of the meeting taken by Shahid record that it was agreed that "all assets including bank proceeds to be held on trust, in accordance with dad's wishes (as per original agreement), assets to be held on trust in equal proportion, decisions to be taken by four siblings." According to Qamer's evidence, this had earlier been agreed between the four of them in Mr Ghafoor's presence. Mrs Farooqi denies that there was any such agreement, either in Mr Ghafoor's lifetime or at the meeting on 16 January 2005.
This dispute of fact does not have to be resolved. Mr Talbot QC on behalf of the Claimants accepted that, whatever the discussions, there was no enforceable agreement for the creation of a trust. Later correspondence from the claimants indicates that Shahid's note does not fully reflect the trust which the claimants had in mind. They envisaged that the claimants and Mrs Farooqi would be life tenants only, with no entitlement to any capital which would be held for their respective children (in what shares is unclear). It would therefore represent a very substantial departure from the terms of Mr Ghafoor's will. Apart from the disputed discussions on 16 January 2005, Mrs Farooqi has not demonstrated any agreement to the proposal for a trust. As Qamer states in his first witness statement:
"What my sister and her husband have been interested in is eventually realising my sister's share of the estate"
That is, of course, her entitlement.
Relations between the claimants and Mrs Farooqi, perhaps not good for some time previously, appear to have deteriorated further within a short time of their father's death. In early March 2005, she instructed SGC, solicitors, to act on her behalf. The first defendant, Richard John Cliff, is a partner in SGC and the second defendant, Karen Nicola Spencer, is a solicitor of 16 years' standing who is employed by the firm. Both specialise in private client work including wills, tax and probate. Mr Cliff filed a caveat on Mrs Farooqi's behalf at the District Probate Registry in Leeds on 7 March 2005, thereby ensuring that a grant of probate would not be made without her knowledge. Mr Cliff has given evidence, without objection from Mrs Farooqi, that she told him on 6 March 2005 that matters leading to probate were not being dealt with fairly or with her full knowledge and that she perceived the claimants to be acting together to exclude her from any part in the administration of the estate.
Shahid was due to be married in Pakistan at the end of March 2005. On 9 March, Shahid, Amjed and their mother flew to Pakistan. On 16 March a petition for a succession certificate was issued in the civil court in Lahore. Shahid and Amjed were named as petitioners and Qamer, Mrs Farooqi and their mother as respondents. It is a procedure governed by the Indian Succession Act 1925, which remains in force in Pakistan for these purposes, and applies to personal property only. The five parties are named as heirs, with each of the sons shown as entitled to a one quarter share and Mrs Farooqi and their mother each shown as entitled to a one-eighth share.
As well as giving evidence of their understanding of the relevant principles of the law of Pakistan derived from discussions with lawyers and judges, the claimants rely on the expert evidence of Hamid Khan, a senior advocate of the Supreme Court of Pakistan and the author of a work entitled The Islamic Law of Inheritance. The defendants do not question his expertise. Mr Khan's evidence is that under the law of Pakistan,...
To continue reading
Request your trial
-
Gloria Ngozi Haastrup and Another v John Adewale Haastrup and Another
...concerned to appoint someone who is independent and impartial, rather than connected with one of the parties in contentious litigation: Ghafoor v Cliff [2001] 1 WLR 3022. 32 Section 116 of the Senior Court Act 1981 reads as follows: "(1) If by reason of any special circumstances it appears ......
-
Colliers International Property Consultants (1) & Colliers International Property Consultants Inc. (2) v Colliers Jordan Lee Jafaar Sdn Bhd
...observe the rules and must particularly do so in an application without notice: see Fitzgerald v Williams [1996] QB 657, at 667–668, Ghafoor v Cliff [2006] 1 WLR 3060, at [46] – [47]; Memory Corporation v Sidhu [2000] 1 WLR 1443, 1459. Mr Zelin submitted that observance of the requirement......
-
Mohammed Sarfraz Ali v Anisha Taj
...Stanley goes further and submits that the Respondents in any event failed in their duty of full and frank disclosure as articulated in Ghafoor v Cliff at [46]–[47] and Alliance Bank v Zhunus [2015] EWHC 714 (Comm) by: i) Failing to reveal the information that had been provided by the Appel......
-
Cef Holdings Ltd and Another v Brian Mundey and Others
...be, and often is, considerable. 188 I am fortified in coming to that conclusion by the statement, which was made by David Richards J in Ghafoor v Cliff [2006] 1 WLR 3020 at paragraph 46 where it was stated in relation to the duty to make full and frank disclosure:- "The principles are well......