Kenneth Charles Hart and Another v Susan Anne and Others

JurisdictionEngland & Wales
CourtChancery Division
JudgeSir William Blackburne
Judgment Date12 June 2013
Neutral Citation[2013] EWHC 1628 (Ch)
Docket NumberCase No: HC11C00559 & HC11C00751
Date12 June 2013

[2013] EWHC 1628 (Ch)

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Sir William Blackburne

Case No: HC11C00559 & HC11C00751

Between:
(1) Kenneth Charles Hart
(2) Paul Roger Hart
Claimants
and
(1) Susan Anne
(2) Brian Jeffery Burbidge
(3) Arthur Kenneth Gerald Samways
(4) Graham Douglas Samways
(5) Christine Margaret Garlinge
(6) Peter Kenneth Hart
(7) Lewis Roger Hart
(8) Gemma Louise Hart
Defendants
(1) Arthur Kenneth Gerald Samways
(2) Graham Douglas Samways
(3) Christine Margaret Garlinge
(4) Peter Kenneth Hart
(5) Lewis Roger Hart
(6) Gemma Louise Hart
Claimants
and
(1) Susan Anne Burbidge
(2) Brian Jeffery Burbidge
(3) Kenneth Charles Hart
(4) Paul Roger Hart
Defendants

Charles Auld (instructed by Withy King LLP) for the Kenneth Charles Hart and Paul Roger Hart

Rosanna Foskett (instructed by Wilsons Solicitors LLP) for the other claimants

Paul Emerson (instructed by Blanchards Bailey LLP) for Susan Anne Burbidge and Brian Jeffery Burbidge

Hearing dates: 26, 27 and 28 February and 1, 4, 5, 6 and 13 March 2013

Sir William Blackburne

Introduction

1

This is the trial of two claims which the Master ordered to be heard together. They are concerned with the estate of Mrs Phyllis Hart. It will simplify matters if I refer to people, I hope without discourtesy, by their first names. Phyllis, as I shall therefore call her, died on 7 November 2008. She was 86 at the time of her death. Her husband of 60 years, Ernest Hart, had died aged 82 almost four years earlier on 4 January 2005.

2

Ernest and Phyllis had three children: two sons and a daughter. The eldest, Kenneth ("Ken"), was born on 5 July 1945; the next in age was Paul who was born on 7 August 1963. The daughter, Susan, was the youngest: she was born on 1 April 1965. Ken and his wife, Mary, have a son, Peter, who was born on 23 September 1967. Paul and his partner, Christine Cox, have two children, Lewis and Gemma. Susan and her husband, Brian Burbidge, also have two small children, Leighton (born on 11 October 2004) and Trinity, (born on 1 October 2010). Trinity was born after the events which give rise to these claims.

3

Phyllis had a twin sister called Ada, known to everyone as Joan. She and Joan were born on 29 July 1922. Joan died on 4 December 2008 which was just four weeks after Phyllis. Phyllis had three other surviving siblings, Arthur, Graham and Christine. Samways is their family surname. When she married, Christine became Christine Garlinge.

4

Ken and Paul are the claimants in action HC11C00559 ("action 559") and the three surviving Samways siblings together with Peter, Lewis and Gemma are the claimants in action HC11C00751. Ken and Paul have appeared before me by Charles Auld. The three Samways siblings and Peter, Lewis and Gemma have appeared by Rosanna Foskett. For convenience I refer to Ms Foskett's clients collectively (if inaccurately) as "the Samways parties". The only effective defendants to both actions are Susan and Brian. They have appeared before me by Paul Emerson.

5

The two claims allege that Susan exerted undue influence on her mother in connection with a series of transactions stretching over period of eight months between February and October 2008. By those transactions Phyllis transferred money to Susan and Brian to enable them to purchase in their joint names a property called Little Manor Farm ("Little Manor") in which they and Phyllis were to live. Phyllis did live very briefly in Little Manor but died suddenly and unexpectedly shortly after moving in. The effect of the transactions was to adeem two gifts in Phyllis's last will, made on 26 April 2007 ("the 2007 Will"), and, arguably, to diminish the size of residue. The gifts were of properties which Phyllis owned. They were No 7 Beacon Park Road, Upton, Poole ("No 7") in which she and, until his death, Ernest had lived for over 30 years, and No 43 Beacon Park Road ("No 43") which Phyllis had owned and which had been let out to provide her with a rental income. The two properties were sold by her in order to provide the sum needed, together with money from a building society account in her name, to enable the purchase to take place. In all she transferred £700,000. Under the 2007 Will No 7 had been given to Ken and Paul and No 43 to the Samways parties and Joan.

6

In their action Ken and Paul complain that Susan's undue influence caused them to lose the gift of No 7 and take a smaller share of residue. In their action the Samways parties (but not Joan — I was given to understand that no representation has yet been taken out in respect of her estate) complain that Susan's undue influence caused them to lose the gift of No 43. That explains why there are two sets of claimants. They seek to have the transactions set aside which resulted in the transfer of the £700,000 so that the 2007 Will can take effect as if those transactions had not occurred. Brian is sued as a knowing recipient of the benefit of the transactions in that he became, with Susan, an equal co-owner of Little Manor. Susan and Brian deny that the transactions were tainted by undue influence.

7

There is also an issue over the price at which Nos 7 and 43 were sold. The two sets of claimants contend, but Susan and Brian deny, that the two properties were sold for less than what they should have yielded because the sales were rushed in order to provide what was needed to purchase Little Manor. Little Manor was resold in 2009 and out of the sale proceeds £410,000 was paid to Phyllis's estate. Susan and Brian say that this was in accordance with the arrangement between themselves and Phyllis when Little Manor was acquired. The arrangement, they say, was that the sale proceeds of Nos 7 and 43 were a loan to them by Phyllis to be repaid when Little Manor should be sold.

8

That in a nutshell is what the trial has been about.

A summary of the background to the claims

9

Ernest owned and ran a marquee business, making and hiring out marquees. Phyllis was nominally in partnership with him. It had been started by his father. The business appears to have prospered. Ken had worked in it since leaving school in 1960. The only exception was a five year period in the mid-1960s when he worked elsewhere. Paul too began working in the business after he left school but he left five years later to become a lorry driver, eventually setting up his own lorry-driving business when he was about 31. Susan also worked in the business, in a secretarial role, starting in 1984 and continuing until 1992 when she left to work elsewhere. By then she had married Brian. Brian had worked in the business between 1987 and 1992, leaving it at the same time as Susan. Susan and Brian attribute their decision to go elsewhere to differences with Ken who by then was in a position of responsibility in the business.

10

In August 1997 Ernest decided to retire. He had reached the age of 74. The business had by then fallen somewhat into the doldrums. Neither Ken nor Paul wanted to acquire it on the terms on which Ernest was willing to dispose of it. The reasons do not matter. However, Susan and Brian were willing to take it on. This prompted Ken to leave the business: by then he had been in it for 37 years except only for the five years in the mid-1960s. Susan and Brian had resumed working for the business in the spring of that year. It led to an agreement dated 23 December 1997 whereby they agreed to pay Ernest and Phyllis £84,000 for the business and to discharge any outstanding liabilities. The £84,000 was payable by such instalments as Susan and Brian should choose to make and there was provision that any outstanding part of the price was to be interest-free and released altogether on the death of the survivor of Ernest and Phyllis. The premises from which the business operated, Unit 15 Sunrise Business Park, Blandford ("Unit 15", also frequently referred to simply as "Blandford"), was not included in the sale. Instead it remained in the joint ownership of Ernest and Phyllis but was made available to Susan and Brian for the purposes of the business. This was under a lease at a nominal rent.

11

Under the terms of Ernest's will, Phyllis was appointed his executrix and given all of his estate. It was valued at a little over £420,000 and included the marital home at No 7. She discovered too that she was the owner of No 43. She knew of that property but had no idea until after Ernest's death that it belonged to her. It seems that Ernest had acquired it in Phyllis's name some years earlier. It was let out and, at least after Ernest's death (it was not clear what the position was while he was alive), it provided her with an additional source of income.

12

Gary Pick ("Mr Pick"), a solicitor with a firm called Dickinson Manser, had acted for the Hart family from the time that he joined that firm in the early 1980s. He acted in the administration of the estate of Ernest's father in 1992, in the administration of Ernest's estate following Ernest's death in January 2005 and is the sole executor of Phyllis's estate. He also drew up many wills for the family over the years, including Ken and Paul. He had a lively appreciation of the tensions within the family.

13

To his great credit Mr Pick had the habit of taking detailed attendance notes of all his meetings and telephone conversations in the course of advising Phyllis. There was one occasion only for which there is no attendance note of a conversation. It was with Paul. This was either because it was not made or is missing from the file. His practice, as he explained to me, was immediately after the meeting or conversation in question, always to dictate a note of the material points discussed and get his secretary (a lady of great experience who had been with the firm even longer than he had been) to type the note...

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