Jonathan Macartney Ball v Christopher Ball
| Jurisdiction | England & Wales |
| Judge | Chief Master Marsh |
| Judgment Date | 05 May 2020 |
| Neutral Citation | [2020] EWHC 1020 (Ch) |
| Docket Number | Case No: PT-2018-000789 |
| Court | Chancery Division |
[2020] EWHC 1020 (Ch)
Chief Master Marsh
Case No: PT-2018-000789
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS
OF ENGLAND AND WALES
PROPERTY TRUSTS AND PROBATE LIST
Rolls Building, Fetter Lane,
London EC4A 1NL
Brie Stevens-Hoare QC (instructed by Wright Hassall LLP) for the Claimant
Josh Lewison (instructed by Clarke Willmott LLP) for the Defendants
Hearing dates: 5 and 6 March 2020
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.
This claim concerns a dispute between three siblings. I will, as at the disposal hearing on 5 and 6 March 2020, use the parties' given names: Christopher, Jennifer and Jonathan. I will refer to their parents as ‘Father’ and ‘Dorothy’. Wroe's is a store that was set up by Father and Dorothy at 13 Belle Vue, Bude, Cornwall in 1954. They acquired an additional part of that property in 1958 and initially operated the business in Ladies Fashions in partnership. In August 1962 Wroe's (Bude) Limited (“Wroe's”) was incorporated and the business has been operated through the company ever since. Wroe's now operates from three locations in Cornwall and its business has broadened to become a department store. It is still wholly owned and controlled by members of the Ball family.
Christopher Edward Ball (Father) died on 26 June 1978 leaving a will dated 9 January 1978. He left the income from his estate in trust for his wife Dorothy for life and the residue of his estate as one third each for Jennifer and Jonathan, with the remaining one third left to Christopher's children. Christopher is the eldest child and is now aged 82. Jennifer is aged 78 and the claimant, Jonathan, is aged 72. Christopher, Jennifer and Jonathan were appointed Father's executors and trustees by his will. They all accepted the appointment and probate was granted to them on 7 March 1979.
Dorothy died on 1 June 2016 leaving a will dated 7 September 2005. She appointed her solicitor, Simon Gregory, and her accountant, Nigel Cox, as her executors. They were originally the third and fourth defendants to this claim. However, the claims against them were discontinued. A grant of probate of Dorothy's estate has not been obtained because Jonathan filed a caveat, despite it being clear that he does not dispute the validity of his mother's will.
Some 38 years elapsed between Father's death and Dorothy's death during which time she was entitled to receive the entire income from his estate. She had no entitlement to capital. During that period of 38 years Christopher, Jennifer and Jonathan were trustees of the will trusts created by Father's will, although Jonathan's case is that he was excluded from all involvement as a trustee. There has been a notable failure on the part of all three trustees to consider with sufficient care what their duties as trustees required them to do and Jonathan maintains that his siblings always put their role as directors of Wroe's before their duties as trustees. There may be some force in this part of his case but it masks the reality that, in day to day terms, running the family business understandably was more of a preoccupation for Christopher and Jennifer than acting as a trustee of Father's estate. As will be seen, the amount of income the assets in Father's estate produced was modest and Dorothy herself remained a director of Wroe's for many years. None of the trustees took advice about their role and there is little evidence to show that Jonathan gave much thought to his role until many years after his father's death. If there is force in his accusation that his siblings adopted a casual approach to their duties as trustees, the same accusation applies with equal force to him.
Jonathan has never had any involvement with Wroe's. He qualified as an architect and became one of the founders of the Eden Project. Sadly, relations between him and his siblings are very strained. The principal relief Jonathan seeks in this claim against Christopher and Jennifer as trustees is an account of his Father's estate. He makes this claim as a beneficiary of that estate albeit that he is a co-trustee.
The claim came on for hearing on the basis of directions made on 5 September 2019. The order determined that witnesses need not attend the disposal hearing for cross-examination. A request made at that hearing to file further witness evidence was refused. There has been no order for disclosure. This is not uncommon in Part 8 claims because the parties are required to provide all the written evidence upon which they rely at the outset of the claim. 1
At the hearing on 5 September 2019 the court approved a list of issues. It proved to be a useful template for the hearing and it is equally useful for this judgment. The issues were defined in the following way (adapting the issues to the terminology used in this judgment):
“1. What monies were paid to Dorothy pursuant to her life interest in Father's Will Trust?
2. What monies have been paid by Christopher and Jennifer to Simon Gregory and Nigel Cox in their capacity as trustees of Dorothy's Will Trust?
3. Have Christopher and Jennifer already provided a sufficient account of the administration of Father's Will Trust?
4. If the answer to the issue at 3 above is ‘no’, should the Court in the exercise of its discretion decline to make an order for an account in view of:
4.1 acquiescence on the part of Dorothy in the administration of Father's Will Trust; and/or,
4.2 any other matters the Court considers relevant including the fact that the underlying claims are stale or serve no practical purpose?
5. If the Court in the exercise of its discretion makes an order for an account:
5.1 what is the scope of the account in terms of assets and period;
5.2 what records and documentation should Christopher and Jennifer provide in support of the account?”
The list of issues was agreed after Christopher and Jennifer had failed to strike out the prayer for relief that seeks an account of what money was due to Dorothy under Father's Will Trust, what money was paid to her and what money has been paid to her executors. Issues 1 and 2 are a more concise version of this claim to relief. Since no money has been paid by Christopher and Jennifer to the executors of Dorothy's Will Trust, because probate has not been obtained, Issue 2 is not contentious and has to be answered in the negative.
Despite the failure of the strike out application, the legal basis upon which Issue 1 arises is not free from challenge. Jonathan is a trustee and a beneficiary of Father's Will Trust. He clearly has locus to apply for an account in relation to that trust as a beneficiary. The fact that he is trustee as well, so that notionally he applies for an account against himself, does not create a difficulty. It appears to be settled, however,
that a capital beneficiary is not entitled to an account in respect of income payable under the trust to a different beneficiary: see Royal National Lifeboat Association and others v Headley [2016] EWHC 1948 (Ch) per Master Matthews [24] to [28]. It seems to me, however, that a capital beneficiary does have an interest in the way the income trust has been managed, if income has been wrongly categorised as such or improperly paid away. And it is certainly the case that Jonathan has an interest that is a sufficient basis for an account to be ordered if assets belonging to the trust have been transferred to the income beneficiaryJonathan is a beneficiary under Dorothy's Will Trust but that does not give him locus to seek an account of Father's Will Trust insofar as it affected her. Only her executors could bring such a claim. Mr Gregory has renounced his entitlement to be an executor of Dorothy's will and Mr Cox has made it clear in correspondence that he does not intend to bring such a claim when probate is granted. It would only be open to Jonathan to bring a derivative claim under the exceptional category of cases explained in Roberts v Gill [2010] UKSC 22.
On 5 February 2020 Jonathan' solicitors supplied to the defendant's solicitors two lever arch files of additional documents that had not been disclosed previously. The vast majority of the documents had been extracted from Companies House and related to Wroe's. The defendants are both shareholders and directors of Wroe's. At the outset of the hearing Mr Lewison, who appeared for Christopher and Jennifer, objected to the additional documents being relied upon. He submitted that the documents could not be relied on by Jonathan because they had neither been exhibited to a witness statement nor provided with the court's permission. He pointed out that the documents had been provided without any explanation and without providing any indication about why they were thought to be relevant. It was left the defendants' advisers to go through them and to work out why they might be relied on.
In response, Ms Stevens-Hoare QC, who appeared for Jonathan, submitted that the documents contained no surprises for the defendants and no request had been made to explain which documents in the additional bundle were relevant and why.
The position under the CPR is not in doubt. The Part 8 regime requires the parties to provide all their written evidence at the outset. However, it is common for the court to permit further evidence to be relied on and disclosure is also ordered on occasions, formerly under CPR 31 and now by adapting as appropriate PD51U. CPR 8.6(1)(b) permits the court to give permission for further written evidence to be relied on if the court gives permission. The rule undoubtedly contains a sanction...
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