John Adewale Haastrup v Gloria Ngozi Okorie and Others
| Jurisdiction | England & Wales |
| Judge | Master Matthews |
| Judgment Date | 06 January 2016 |
| Neutral Citation | [2016] EWHC 12 (Ch) |
| Docket Number | Case No: HC-2015000242 |
| Court | Chancery Division |
| Date | 06 January 2016 |
[2016] EWHC 12 (Ch)
Master Matthews
Case No: HC-2015000242
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Ivan Krolick ( OA Ogunbiyi on 6 January 2016) (instructed by Alpha Rocks Solicitors) for the Claimant
Neil Vickery (instructed by Teacher Stern LLP) for the First Defendant
Hearing dates: 19 and 20 October 2015
Introduction
In this claim there are presently four outstanding applications by notice. Of these, two are brought by the Claimant against the First Defendant, and two by the First Defendant against the Claimant. In order of issue they are as follows:
(1) an application notice dated 18 June 2015, issued by the First Defendant, for an order that the claim be struck out, or alternatively for summary judgment in her favour.
(2) an application notice dated 6 August 2015, issued by the Claimant, for an order that the First Defendant produce the original of a particular letter dated 18 January 1969 so that it could be examined scientifically.
(3) an application notice dated 10 August 2015, issued by the Claimant, for an order that the Claimant be appointed as personal representative of the estate of the late Captain Israel Ademola Haastrup ("the deceased") under CPR r 19.8(1).
(4) an application notice dated 13 October 2015, issued by the First Defendant, for orders that (i) the claim be stayed until the Claimant submit to a DNA test, and (ii) unless the Claimant pay an existing costs order within a short time the claim be struck out.
In this judgment I deal mainly with the first, but also to some extent with the third, of these applications. They are made in hotly contested proceedings, arising out of the death of the deceased. Originally there were at least four other claims in the High Court so arising, or at least involving his assets, as well as two in the county court, and other proceedings in Nigeria. The main focus of this particular claim is the alleged use by the First Defendant, both before and (curiously) after the death of the deceased, of a power of attorney ("the Power") dated 15 June 2010, allegedly drawn up by the Second Defendant and executed by the deceased in favour of the First Defendant and the Fifth Defendant.
The claim was formally commenced by claim form dated 22 January 2015, originally under Part 8 of the Civil Procedure Rules ("CPR"), for various orders in relation to the Power. In summary, these are orders (i) that the Power is (a) void for lack of mental capacity when it was purportedly granted, or alternatively (b) voidable for non-compliance with the Mental Capacity Act 2005, (ii) restraining the First to Fourth Defendants from further relying on the Power after the death of the deceased, and (iii) for an account of assets of which the Defendants "had control by virtue of" the Power.
The Claimant claims to be the son and eldest child of the deceased, who died in England on 8 October 2012. The First Defendant denies the Claimant's paternity, which is thus in issue. The First Defendant claims to be the widow of the deceased (but is not the mother of the Claimant). The Claimant says she is not the deceased's widow, because she was divorced from the deceased at the time of his death. This too is in issue. The Second Defendant is a Nigerian lawyer and partner in the Third Defendant, and the Fourth Defendant is stated to be the other partners in the Third Defendant (but they are not stated to be a separate body, and neither are they listed). The Fifth Defendant is an admitted son of the deceased. All the defendants except the First Defendant dispute jurisdiction, and the proceedings so far have been carried on only between the Claimant and the First Defendant.
Procedural history
The procedural history of the claim is complex but important. On 20 January 2014, the Claimant had obtained letters of administration in the Federal Capital Territory High Court, Nigeria, to the estate of the deceased. On 20 June 2014 those letters were resealed in the Leeds District Probate Registry. The present proceedings began before the issue of the claim form, with a without notice application to Birss J on 20 January 2015, in which he was asked to grant an interim injunction, in favour of the Claimant, against all the Defendants to restrain them from using or relying on the Power. Because the First Defendant was not aware of the application and therefore was not present or represented, the judge made a temporary order, until 27 January 2015 or further order in the meantime. As mentioned already, the claim form was issued on 22 January.
However, on 27 January, the temporary injunction expired and the Claimant returned to court to seek a fresh injunction for the future. On this occasion, however, the First Defendant was represented and was heard. As a result, Nugee J declined to renew the injunction. The judge was apparently concerned by the Claimant's failure to disclose to Birss J at the earlier hearing that on 20 July 2014 the Claimant had himself been injuncted by a Nigerian court (the Federal Capital Territory High Court) to restrain him from relying on the letters of administration or from "parading himself as in any way as the Administrator" of the deceased's estate "within or outside Nigeria". This injunction had been granted pending litigation in Nigeria. Moreover, the Leeds District Probate Registry, having become aware of the Nigerian litigation, had by letter of 27 August 2014 informed the Claimant that it was recalling the resealed grant, pending investigation. The Claimant's appeal against the imposition of the Nigerian injunction was said by the First Defendant to have been dismissed on 8 December 2014, although the Claimant contests this. (Having subsequently been so informed, on 12 February 2015 the Leeds District Probate Registry cancelled the resealed grant in this jurisdiction.)
Nugee J adjourned the Claimant's application for an injunction to be heard at a later date. Although this had been commenced as a Part 8 claim, the claim form stated that particulars of claim were nonetheless "to follow", and the Claimant served such particulars on 5 February 2015. On 5 March 2015 Deputy Master Nurse ordered that the claim proceed as if under CPR Part 7, and gave permission to the Claimant to serve amended particulars of claim by 19 March 2015. The Claimant did so.
The Claimant's application, together with a further application by the Claimant for summary judgment on the claim, was ultimately heard by David Halpern QC, sitting as a deputy High Court judge, on 20 May 2015. On 5 June 2015 the deputy judge delivered judgment and, on the First Defendant's undertaking not to use the Power within the United Kingdom until trial or further order, made an order dismissing both applications. He also ordered the Claimant to pay the First Defendant £23,000 in respect of costs on the indemnity basis, summarily assessed. He also recorded that the summary judgment application had been totally without merit. The Claimant lodged notice of appeal against these orders, and for a stay, on 23 June 2015. So far as I am aware, the Court of Appeal has yet to make any decision on these applications.
In giving judgment, the deputy judge expressed the view that there were strong grounds for striking the claim out, because (i) the Claimant had failed to establish that he had any title to sue at all, given that any claim relating to the validity of the Power would be vested in the deceased's estate, and the existing litigation in Nigeria over the disputed will and the interim injunction restraining the Claimant from using the Nigerian letters of administration meant that the Claimant himself could not (at present, at least) be the proper claimant in any event, and (ii) the proper parties were not before the court, there being no representative of the deceased's estate.
On 18 June 2015 the First Defendant, no doubt having considered what the deputy judge had said, issued the first of the four applications to which I have referred. Under the application notice, she seeks an order (i) that pursuant to CPR r 3.4(2)(a) and/or (b), and/or the court's inherent jurisdiction the claim be struck out, alternatively (ii) for summary judgment, on the basis that the Claimant has no real prospect of succeeding on the claim and there is no compelling reason why the case should be disposed of at trial, alternatively (iii) striking out certain paragraphs of the particulars of claim, and (iv) that the Claimant pay the costs of the application. This was supported by a witness statement of Rajesh Pabla, dated 18 June 2015, and opposed by a witness statement of Isi Inyang, dated 6 August 2015.
On 6 August 2015, the Claimant issued an application for "an order that the First Defendant produce the original letter dated 18 January 1969 for forensic purposes". This is a reference to a letter purportedly written by the deceased stating that the Claimant was not his son. The application was supported by a witness statement of Isi Inyang, dated 6 August 2015, opposed by a witness statement of the First Defendant (her 3rd) dated 11 August 2015, and further supported by a witness statement of the Claimant dated 12 August 2015.
On 10 August 2015, the Claimant issued an application for "an order for the appointment of [the Claimant] as a personal representative of the estate of [the deceased] under CPR 19.8(1)(a) for the purpose of the above claim, or for [an order that] the claim proceeds without a representative". This was served on 11 August. It was...
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