Janice Elizabeth Nield-Moir v Lorraine Karen Freeman
| Jurisdiction | England & Wales |
| Judge | HHJ,Paul Matthews |
| Judgment Date | 21 February 2018 |
| Neutral Citation | [2018] EWHC 299 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: D31BS679 |
| Date | 21 February 2018 |
In the Estate of Colin Wilson Birtles Deceased
[2018] EWHC 299 (Ch)
HHJ Paul Matthews
(sitting as a Judge of the High Court)
Case No: D31BS679
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
Michael Clarke (instructed by Willans LLP) for the Claimant
Julie Case (instructed by Wrigley Claydon) for the Defendant
Hearing dates: 8 February 2018
Judgment Approved
Introduction
On 8 February 2018 I heard an application by the claimant for an order that the defendant submit to DNA testing to establish whether she was the biological daughter of Colin Wilson Birtles (“the deceased”), in relation to whose estate this claim is brought. At the end of the hearing, I announced that I had decided that the application should succeed, but said that I would put my reasons in writing. However, when I began to compose those reasons, I realised that the impact of human rights on the question had not been sufficiently explored. Accordingly, I told counsel that my decision announced at the conclusion of the hearing could not be regarded as definitive, and asked them to let me have written submissions on the human rights aspect. They have now kindly done so, and I am very grateful to them for responding so rapidly. This is accordingly my decision.
The claimant and the defendant were both born to the deceased's late wife Veronica, in 1961 and 1962 respectively. This was during the deceased's marriage to Veronica, although they subsequently divorced, in 1977. The claimant and the defendant are therefore at least half-sisters. However the claimant denies that the defendant is the biological daughter of the deceased. They have been estranged for many years. The claimant has lived in Australia since 2007.
The deceased died in England on 16 June 2013, intestate, a divorcee and without living parents. On 5 September 2013, the defendant obtained a grant of administration in respect of the deceased's estate through solicitors. The only assets in the estate were the terraced house known as 31 Lily St, Royton, Oldham, Lancashire, and some cash at bank. On 11 November 2013 the defendant as personal representative appears to have sold 31 Lily Street to herself.
The claim
The claim itself was begun by claim form issued on 13 October 2017. It seeks the revocation of the grant of letters of administration of the estate of the deceased to the defendant and the grant of letters of administration instead to the claimant. Moreover, it seeks a declaration that the defendant is not entitled to any interest in the estate and also a declaration that a sale and transfer of 31 Lily Street to the defendant be set aside. It seeks other relief as well, but I am not concerned with that now. The claim form was accompanied by particulars of claim setting out the claim in detail, including a clear allegation that the defendant was not the biological child of the deceased, but also an alleged breach of the ‘self-dealing’ rule as administrator in selling 31 Lily Street to herself.
The defendant filed and served a defence and counterclaim dated 22 November 2017. It made the case that the defendant was indeed the child of the deceased. It also said that at the time of the defendant's birth the deceased and the defendant's mother Veronica were married, and the defendant's birth certificate stated that the deceased was her father. Accordingly there was a (common law) presumption that the deceased was the defendant's father, rebuttable on the balance of probabilities ( Re Baronetcy of Pringle of Stichill [2016] 1 WLR 2870, [36]–[41]; Family Law Reform Act 1969, s 26). Moreover, after the deceased was divorced from Veronica, the deceased paid maintenance in respect of the defendant pursuant to a court order until the defendant was 16 years old. The allegation of breach of trust and duty in relation to the administration of the estate and the sale of the property to herself was denied. A reply and defence to counterclaim was filed and served dated 30 November 2017.
The application
The present application was made by notice dated 28 November 2017. It is supported by two witness statements of Paul Gordon, a partner in her solicitors Willans LLP. The first is dated 28 November 2017 and the second is dated 7 February 2018. It is opposed by a witness statement of the defendant herself dated 31 January 2018. At the hearing before me on 8 February 2018, Mr Michael Clarke of counsel appeared for the claimant/applicant and Ms Julie Case of counsel appeared for the defendant/respondent.
The evidence for the applicant supports her case that the deceased told a number of persons during his life that the defendant was not his biological daughter, despite the fact that she was born to his wife during the subsistence of their marriage. Accordingly, the claimant had sought the defendant's agreement to submit to a DNA test which would provide scientific evidence as to whether the deceased was indeed the defendant's father. The applicant would also be tested. A comparison of the DNA of the applicant and the respondent would probably show whether they were related, and if so whether as full or half-sisters. However, the defendant has so far refused to consent to such a test. The applicant therefore now seeks an order to require the defendant to submit. The test would be by means of a saliva mouth swab. The tester would be Dr Denise Syndercombe-Court. She is reader in forensic genetics at King's College London. The costs would be met in the first instance by the applicant.
In her evidence, the respondent accepts that she has refused to agree to the DNA test. She has done so on the basis that, at the time of her birth, her father was married to Veronica, her birth certificate states that the deceased was her father and the deceased paid maintenance pursuant to a court order for her until she was 16 years old. Her evidence is that the deceased never challenged paternity, despite having opportunity to do so. She dismissed the evidence collected by the applicant of alleged statements by the deceased to others that she (the respondent) was not his daughter as “nothing but gossip and hearsay”. She also refers to an email received by her solicitors dated 3 August 2017 from Dr Syndercombe-Court. That email, the respondent says, states that the question whether the claimant and the defendant are full sisters cannot be answered “definitively”. Moreover, “she does not say that she would be able to provide ‘sufficient proof’ just that she expects that she could”. And the email also raises the possibility of the test producing false positives and false negatives.
There is a niece of the deceased called Valerie Nettleship. Any child of the deceased would be Valerie's cousin. It appears that she would be willing to undergo a DNA test as well (see the first witness statement of Paul Gordon dated 28 November 2017, [10]), so that the DNA test carried out on the defendant could not only provide information relevant to the question whether the claimant and the defendant are full or half-sisters, but also are daughters of the deceased.
As I have said, the defendant obtained a grant of administration in respect of the deceased's estate through solicitors. But the evidence (including the particulars of claim, to which the claimant has attached a statement of truth) shows that she did not take any steps to locate the applicant. The defendant in her witness statement does not deny this. In her defence and counterclaim she admits not having advertised for claims. She says this was as a result of her solicitors' advice.
Three questions for the court
Accuracy of the test
Mr Clarke, for the applicant, said there were three questions that the court needed to deal with. The first was whether the test would be sufficiently accurate. The second was whether the court had jurisdiction to make the order. The third was whether in the circumstances the court ought to make order. As to the first of these, in his second witness statement, Mr Gordon, on behalf of the applicant, responds to the suggestion by the respondent that there is doubt about the accuracy and efficacy of the DNA testing. Dr Syndercombe-Court was sent a copy of the respondent's witness statement and responded by letter dated 6 February 2018.
In that letter she says this:
“I have read the comments made by Lorraine Freeman at paragraphs 6 to 9 of her witness statement dated 31 August 2018 and, in particular, her concern that the question of whether she and Ms Nield-Moir are full or half sisters may not be tested definitively by me.
I am a scientist. In my work I use the word ‘definitively’ to mean ‘beyond any doubt’ or ‘absolute (100%) certainty’. In that sense I am unable to provide a definitive result. However, I would like to reassure both parties and the court that I will be able to provide a result which establishes whether the parties are full or half siblings to a very high degree of probability.
[…]
When testing as between full and half siblings, I have never failed to provide a useful result, although sometimes that might mean using very extensive testing. It follows that in the present case, given the number of times I have tested siblings, the possibility that I will be unable to provide a result in this case is remote in the extreme. The possibility that the result I reach will be inaccurate is expected to be very low. I may not be able to say that the result will be definitive (in the sense I use the word) but I would fully expect it to be a result that the court could seek to rely on.
Taking into account and aggregating both the possibility that I may not be able to...
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...power to ensure justice is done. In support of this contention, he relied on paragraph 26 of the case of Neild-Moir v Freeman [2018] EWHC 299 (Ch). Mr Equiano further emphasized that the SCA has no mechanism to compel the Claimant to submit to DNA testing. In the absence of such a compulso......
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...no direct authority addressing the issue in this case, but that I should apply the test in Nield-Moir v Freemen (Re Birtles Deceased) [2018] EWHC 299 (Ch). The claim was a dispute over the estate of the deceased. The claimant and defendant were sisters. An application was made by the claim......