Helen Elizabeth Batt v Hugh Charles Boswell
| Jurisdiction | England & Wales |
| Judge | Paul Matthews |
| Judgment Date | 25 March 2022 |
| Neutral Citation | [2022] EWHC 649 (Ch) |
| Docket Number | Case Nos: PT-2021-BRS-000016 and PT-2021-BRS-000007 |
| Court | Chancery Division |
[2022] EWHC 649 (Ch)
HHJ Paul Matthews
(sitting as a Judge of the High Court)
Case Nos: PT-2021-BRS-000016 and PT-2021-BRS-000007
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS IN BRISTOL
PROPERTY TRUSTS AND PROBATE LIST (ChD)
Bristol Civil Justice Centre
2 Redcliff Street, Bristol, BS1 6GR
Alex Troup (instructed by Harris and Harris) for the Claimant
Steven Ball (instructed by Pardoes LLP) for the Defendant
The Part 20 Defendant in person
Hearing dates: 25–26 January 2022
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
This is my judgment on the trial of a claim under CPR Part 7 for breach of trust brought by the claimant against the defendant, her brother, by claim form issued on 16 February 2021. The claim arises out of a will trust created by their late father, Charles Boswell, who died as long ago as 23 February 1991. But the issue of the claim followed hard on the heels of a claim under CPR Part 8 issued on 21 January 2021 by the defendant against the claimant to remove her as a personal representative of the estate of their mother, Phyllis Boswell. That claim has since been resolved, apart from the question of costs. I will have to return to that question later. But for now I am concerned with the breach of trust claim. On 29 March 2021 the defendant made a Part 20 claim in the Part 7 claim against the claimant's husband, Philip Batt.
The family
Before I go further, I will briefly describe the family circumstances. For the sake of convenience, but without intending any disrespect, I shall use the first names of the relevant parties. Charles Boswell and his wife Phyllis had two children. The elder is the claimant, Helen. She was born some nine years before her brother, Hugh, the defendant. Helen married Philip Batt (the Part 20 defendant) and they have two sons, one of whom is called Harry, who changed his name to Hemmings-Batt upon his marriage in 2014. Hugh was married first to Elizabeth, and they had a daughter together. After their divorce, Hugh married Jackie. When Charles died in 1991, his will appointed his widow Phyllis and his son Hugh as co-executors and trustees.
Phyllis subsequently formed a relationship with an old family friend called Les Kite. He died in 2009. Phyllis died on 20 September 2019. By her will she appointed Helen and Hugh as co-executors. As I have said, there was a claim brought to remove Helen as a co-executor of her mother's will, but on 20 July 2021 District Judge Taylor sitting in the High Court in Bristol removed both Helen and Hugh, and appointed Michelle Rose, an independent solicitor, to act as personal representative of Phyllis's estate in their place.
The properties
A number of properties come into the story in this case. I set out brief details of them here. First of all, there is the family home of Charles, Phyllis and their children in the 1970s. This was known as Hillside, Venns Gate. It was sold on 12 September 1991 by Phyllis and Hugh. Since Charles and Phyllis were joint tenants of the legal estate, Phyllis took the whole legal estate by survivorship on Charles's death. However, Hugh was appointed a co-trustee for the purpose of giving a good receipt to the purchasers for the capital monies. (I interpose here to say that Hugh also had a house called Hillside, on Shipham Hill, but this was an entirely different house.) Secondly, there is a property called 1 Hill Lea Gardens (which I will refer to as “HLG”). This was originally a bungalow, bought in 1992 in the joint names of Phyllis and Helen, and in which Phyllis lived. It was later the subject of a deed of gift in favour of Helen and Philip dated 22 February 2009. Thirdly, there is a house called The Rowans. This was bought in 1997 jointly by Phyllis and Les Kite, but as beneficial tenants in common. After Les Kite's death, it was sold in 2010 by Phyllis. Lastly there is a house called Montrose Villas, which was owned by Helen and Philip. It was let at a rent until Phyllis moved to live there.
Family litigation
This is litigation between a sister and brother, about the affairs of a trust created by the will of their father, and of which their mother and brother were trustees. It is the result of a huge rift in the family, originally between Helen and her mother during her lifetime, and now (after her death) between Helen and her brother, with the added complication that Helen's own son Harry is giving evidence for his uncle, the defendant, and against his own parents.
It is the worst kind of trust and inheritance litigation. Nothing that I decide is going to bring about a reconciliation between the parties in this case. Whatever I decide, each side is going to go on thinking that it was right, and the other wrong. And the costs of both sides will swallow up a good deal of the benefit that was intended to be conferred. Nevertheless, I must decide it by the same rules that apply to all such litigation. At least then the parties will be able to get on with their lives.
This claim
The claim form says that this is a “breach of trust claim in which the Claimant seeks the restoration of the Trust Fund together with compound interest and an order that she is paid such sum as is due to her out of the Trust Fund”. The particulars of claim plead (amongst other things) (i) Charles's will, creating a life interest trust for Phyllis with a gift over in remainder (after paying legacies to grandchildren and giving Hugh some land at Bilcombe, Cheddar) for Helen and Hugh in equal shares absolutely, (ii) Charles's death on 23 February 1991, (iii) probate being granted to Phyllis and Hugh on 23 July 1991, (iv) a failure to invest the trust fund, and (v) a wrongful transfer of the trust fund to Phyllis “who spent it as if it were her own personal money”. Allegations (i)-(iii) are admitted, but the remainder are denied.
How civil judges find facts
Both claimant and defendant in this unfortunate family dispute were professionally represented by solicitors and barristers. The Part 20 defendant, however, was not. The professionals involved will already know what I am going to say, but, for the benefit of the claimant and defendant, most of whose experience of civil litigation must be little or nothing, and also for that of the Part 20 defendant, I set out here some important aspects of the procedure which has to be followed. I hope that it will enable the lay clients to understand a little better how civil judges reach their conclusions, and indeed how I have reached mine in this case.
Where there is an issue in dispute between the parties in a civil case, one party or the other will bear the burden of proving it. In general, the person who asserts something bears the burden of proving it. In this case it is the claimant who asserts that there was a breach of trust by the defendant. The significance of who bears the burden of proof in civil litigation is this. If the person who bears the burden of proof of a particular matter satisfies the court, after considering the evidence that has been placed before the court, that something happened, then, for the purposes of deciding the case, it did happen. But if that person does not so satisfy the court, then for those purposes it did not happen. The position is binary. There is no room for “maybe”.
Next there is the question of the standard of proof. Civil judges do not find facts on the basis of what is scientifically certain, nor even of what is beyond reasonable doubt. Instead, they find facts on the basis of what is more likely than not to have happened, the so-called “balance of probabilities”. And it is the judge, and no-one else, who makes that (objective) evaluative decision. Self-evidently, the parties may have a quite different, subjective, appreciation of what the evidence shows. But it is the judge's independent and objective view that counts.
Thirdly, it is also well known that memories are fallible, especially going back a number of years, and once a false memory has been unwittingly absorbed, it may be almost impossible for the witness to divest himself or herself of it. Certainly, in commercial cases where there are contemporaneous documents available, these accordingly acquire a greater significance, as being more objective: see Gestmin SGPS SPA v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm), [22]. Even in such cases, however, oral evidence and cross-examination are still important. They enable proper scrutiny of the documents, and they also permit the judge to gauge the personality and motivations of parties and witnesses: cf Armagas Ltd v Mundgas SA [1985] 1 Lloyd's Rep 1, 57, per Robert Goff LJ.
On the other hand, where witnesses are personally and emotionally involved in events in family life, and death, those witnesses may have more cause to remember events, even going back many years, than any employee of a large corporation may have in relation to a past commercial transaction: cf Kogan v Martin [2019] EWCA Civ 1645, [89]. Whereas (say) a solicitor may deal with many wills and trusts in a career, family members may be involved in only one or two such events in their lifetime, and they assume more significance for them. Here there are relatively few documents, and some of those are ambivalent: cf NatWest Markets plc v Bilta [2021] EWCA Civ 680, [51].
The witnesses
The following witnesses gave evidence before me: (i) the claimant Helen, (ii) her husband Philip, the Part 20 defendant, (iii)...
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...explain how English judges decide civil cases like this. This is what I said about the process in a recent case, Batt v Boswell [2022] EWHC 649 (Ch): “9. Where there is an issue in dispute between the parties in a civil case, one party or the other will bear the burden of proving it. In ge......