Harry Fitzhugh v Anthony Fitzhugh
| Jurisdiction | England & Wales |
| Judge | Mr Justice Morgan |
| Judgment Date | 11 November 2011 |
| Neutral Citation | [2011] EWHC 3553 (Ch) |
| Court | Chancery Division |
| Docket Number | Ref: 9BM30477 |
| Date | 11 November 2011 |
[2011] EWHC 3553 (Ch)
IN THE HIGH COURT OF JUSTICE
(CHANCERY DIVISION)
Birmingham District Registry
The Priory Courts
Bull Street
Birmingham
The Honourable Mr Justice Morgan
Ref: 9BM30477
For the Claimant: Mr Clarke
For the Defendant: Mr Howlett
The Fitzhugh family
Harry Fitzhugh Senior was a farmer. He died on 10 th April 1995. He died intestate. He had married twice. His first marriage to Joan Fitzhugh was dissolved in around 1978, his second marriage to Irene ended in her death in December 1988. At the date of his death, he was survived by nine children. They were all the children of himself and his first wife Joan. The nine children, in order of seniority in the family, were as follows: Jeffrey, the eldest, was born in 1941. The next was Maureen, followed by Joan, followed by Colin, followed by Marion, followed by Harry Junior, then Yvonne, then Amanda, and then Anthony.
The claimant in this action is Harry Junior. I will refer to him in this judgment as Harry Fitzhugh or Harry, that will not be a reference to his father. Anthony was the youngest, although he was a twin of Amanda. He is also known as Tony, or perhaps a little unusually as Tom. I will refer to him as Anthony or Tony. Anthony was born in 1960 and is the defendant in these proceedings.
Since the death of Harry Fitzhugh Senior, there have been other deaths in the family. Colin died on 25 th January 1997 and Jeffrey died on 24 th April 2001. It is also relevant to refer to the fact that Joan and Marion live in different places in the United States of America. Amanda, also known as Mandy, I was told had a mental illness. She has been diagnosed with schizophrenia, and I was also told she had been sectioned under the Mental Health Act.
The estate
As I have explained, Harry Fitzhugh Senior died intestate. There was a grant of letters of administration on 15 th June 1995. The four administrators to whom letters were granted were the four boys in the family, Jeffrey, Colin, Harry and Anthony. That was the position in 1995. Of course, following the death of Colin and Jeffrey, as I have described, the administrators became two only, namely Harry and Anthony. That has been the position since 2001 and is the current position.
The principal assets of the estate
The principal assets of the estate for present purposes have been and remain certain parcels of land and buildings. I have been shown a plan on which the areas of land and buildings have been numbered plots 1 to 6. A detailed description of the land and buildings can be found in a report of an agreed joint expert and I will not recount all of the detail of that description, I will attempt a more concise statement of what is involved.
Plot 1 consists of a substantial farmhouse and garden. It is shown edged red on the plan to which I have referred. Plot 2 consists of some barns around a courtyard. The plan shows plot 2 as a square or rectangle, although on the ground I think it is not quite as regular as the plan would suggest. Plot 2 is shown coloured yellow. Plot 3 is something of a mixture. There appears to be a substantial surfaced open yard and not in very regular positions at the perimeter of the yard there are some further buildings. The expert's report, as I have said, describes the construction of these buildings in detail. Suffice to say that they are not so substantial as the barns around the courtyard in plot 2. Behind the open yard and the buildings in plot 3 there appears to be some open farmland. Plots 4 and 5, which are respectively to the south and to the north of plot 3, consist of farmland. Plot 6 is on the other side of the road from the plots I have already described. Plot 6 is principally a field, but at the edge of the field by the roadside there is a cottage which has been variously described as Primrose Cottage or Rose Cottage.
I have also been shown a conveyancing plan which was based upon an earlier ordnance survey plan. That showed that the layout in earlier times was not quite what it has become more recently. If one takes acreages from this plan, plot 4 together with some part of plot 3 is approximately 3.9 acres and plot 5 together with some part of plot 3 is some 4.6 acres. These acreages and the field numbers are indeed used in one of the documents to which I will later refer.
The witnesses
I heard evidence from a number of witnesses on each side of this dispute. There are a number of matters in dispute. There are two matters where the dispute is a considerable one. The first relates to whether a meeting took place on 22 nd March 1998, and if so who attended that meeting and what happened. The second area of disputed fact concerns Anthony=s dealings with a Solicitor in relation to a conveyance to him and Karen Body, that conveyance being entered into on 3 rd July 1998. So the time period with which one is concerned, in this respect, is from around March 1998 to that date in July 1998.
It is not necessary I think for me to refer to each and every witness who gave evidence before me. It is, however, relevant to refer to six witnesses, three who gave evidence for the claimant, Harry, and three who gave evidence for the defendant, Anthony. For the claimant, the three witnesses are Harry himself, Judith, the widow of Colin, and Joan Bishal, who was the partner of Jeffrey. On the defendant's side the three witnesses are Anthony himself, Karen Body, his long-term partner, and Joan Beers, who is one of the siblings, originally Joan Fitzhugh.
Of these witnesses, the witness whom I find it easiest to assess is Judith Fitzhugh. She gave important evidence about the meeting or the alleged meeting on 22 nd March 1998. She produced a note, which she said was contemporaneous, which contained important information about what happened at that meeting. She appeared to me to be a transparently honest witness. I put it that way because what is said by Anthony through his Counsel about Judith is that Judith has participated in a very deliberate, dishonest, perjured fabrication of documents and untruthful evidence to the court. I will explain in due course my findings in relation to that, but suffice it to say at this stage that I regard that suggestion of fabrication as being wholly without any foundation. Although the allegation of fabrication was put in terms to Harry Fitzhugh, my note does not suggest that it was put in anything like clear terms to Judith Fitzhugh herself. I am not in a way surprised it was not put to Judith Fitzhugh. It would have been an obviously inappropriate suggestion to make to that witness. Suffice to say that I accept the main thrust of her evidence. It may be that she is not able to recall every matter of detail, but that in itself after the passage of time is not surprising.
The second witness for the claimant whom I should assess is Harry Fitzhugh himself. I find that his evidence was generally reliable, although again I do not necessarily accept every matter of detail. There is scope here for faulty recollection.
The third witness for the claimant is Joan Bishal and I also found her evidence to be generally reliable, but again reserving my position in relation to matters of detail.
I turn then to the very different picture on the other side of the litigation. I am not prepared to accept Anthony Fitzhugh's evidence on any significant matter where it conflicts with the evidence of the claimant. I am quite satisfied that he is wrong about the events of 22 nd March 1998. I base that finding on the contemporaneous documents, the inherent probabilities, the veracity of other witnesses who conflict with him, and the self interest which he has in the evidence which he gave. I am also satisfied that he is wrong about the communications he had with the Solicitor in the period March or April 98 to July 1998 essentially for the same reasons as I gave when I rejected his evidence in relation to the meeting of 22 nd March 1998.
It may not be necessary for me to find how it comes about that Anthony Fitzhugh has given evidence which I am not prepared to accept. Sometimes a witness genuinely misremembers the events, sometimes a witness persuades himself that events happened or did not happen when, objectively speaking, the position is otherwise, sometimes a witness deliberately attempts to mislead the court and gives evidence that he knows to be untrue. In this case, because Anthony Fitzhugh is an administrator and because I am asked to remove him, essentially because he is unfit to be an administrator, I think I ought to express my finding as to how it comes about that Anthony Fitzhugh has given the evidence which he has given. I am satisfied that at least in part of the evidence he gave, he must have appreciated that the evidence which he gave was not true.
I turn then to Karen Body, who is, as I have described, the long-term partner of Anthony Fitzhugh. She was not able to recollect a number of matters and suggested that they had not occurred. She was supportive of Anthony Fitzhugh. I find that she has allowed her loyalty to Anthony Fitzhugh to prevail over her duty to recollect matters correctly and describe them correctly in her evidence.
The third witness for the defendant that I need to refer to is Joan Beers. She gave evidence that the meeting on 22 nd March 1998 did not take place, or at any rate there was no meeting which she attended. I am satisfied by the totality of the evidence that she is wrong about that. I do not find that she is deliberately misleading the court. I think that she has forgotten or misremembered. She also may be influenced by...
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Harry Fitzhugh v Anthony Fitzhugh
...OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE HIGH COURT OF JUSTICE CHANCERY DIVISION BIRMINGHAM DISTRICT REGISTRY Mr Justice Morgan [2011] EWHC 3553 (Ch) Royal Courts of Justice Strand, London, WC2A 2LL Lord Justice Longmore Lord Justice Rimer and Lord Justice Patten Case No: A3/2011/3117 ......