Kim Turner v Bromets Jackson Heath Llp and Others
| Jurisdiction | England & Wales |
| Judge | Judge Behrens |
| Judgment Date | 16 June 2016 |
| Judgment citation (vLex) | [2016] EWHC J0616-1 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 16 June 2016 |
| Docket Number | Case No: A80LS536 |
[2016] EWHC J0616-1
IN THE COUNTY COURT sitting at LEEDS
CHANCERY BUSINESS
The Court House
Oxford Row
Leeds LS1 3BG
His Honour Judge Behrens
Case No: A80LS536
Don McCue (instructed by Dickinson Wood) for the Claimant
Niamh O'Reilly (instructed by Caytons Law) for the Defendants
Hearing dates: 25, 26 and 27 May 2016
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 is a professional negligence action against a firm of solicitors. It arises out of a Declaration of Trust which was executed on 9 December 2005 by Ms Turner and Mr Millington. At that time Mr Millington and Ms Turner had been cohabiting at 23 Burns Way, Clifford, Wetherby LS23 6TA ("23 Burns Way") since about 2002. 23 Burns Way had been purchased in Mr Millington's sole name in late 2001. Ms Turner was proposing to invest £20,000 in 23 Burns Way. As a result the ownership of 23 Burns Way was to be transferred into joint names, it was to be re-mortgaged and the Declaration of Trust was to be executed to reflect the beneficial interests.
In 2005 Bromet & Sons ("Bromets") was a firm of solicitors practising in Tadcaster. Mr Millington instructed Bromets to deal with the matter on behalf of both himself and Ms Turner. Bromets duly prepared the relevant documents and the transaction completed on 9 December 2005.
The Declaration of Trust calculates the value of Mr Millington's equity at £160,486.58 and the value of Ms Turner's equity at £20,000. It contains a declaration that on the sale of 23 Burns Way the net proceeds will be divided as to £160,486.58 for Mr Millington, £20,000 for Ms Turner with any further sums being shared equally between them. Thus Ms Turner would receive half of any increase in value after the date of the transaction.
Ms Turner complains that Bromets was negligent. She has two main allegations. First she contends that there was no explanation of the Declaration of Trust before she signed it. She would not have signed it if she had understood its terms. Second she contends that Bromets should have appreciated that there was a significant risk of a conflict of interest between herself and Mr Millington and should have advised her to seek separate advice. If that had happened she would have sought such advice and not have signed the Declaration of Trust.
The relationship between Ms Turner and Mr Millington broke down in 2012. Following the breakdown she negotiated a settlement with Mr Millington involving the return of the £20,000 and some other sums reflecting moneys that had been spent by her. She contends that she would have achieved a better settlement if she had not executed the Declaration of Trust.
Bromets has raised a number of defences to the claim. First it contends that the terms of the Declaration of Trust were fully explained to Ms Turner (and Mr Millington) at a meeting with Mrs Natkus (a Conveyancer employed by Bromets) on 6 December 2005. Second it contends that both Mrs Natkus and Miss Alden (the Conveyancer employed by Bromets who originally had conduct of the matter but who was ill) formed the view that there was no significant risk of a conflict of interest. Ms Turner has not established that Bromets was negligent in forming that view. If, contrary to the primary position, Bromets is held to be negligent there are a number of issues on both causation and loss. Bromets' primary position is that if Ms Turner had sought advice elsewhere she would have been advised that she had no realistic prospect of a successful claim based on constructive trust and that she ought to sign the Declaration of Trust. It also contends that the actual settlement achieved was as favourable as Ms Turner might have achieved if she had not signed the Declaration of Trust and the transaction had not proceeded.
At one time there was a further defence based on limitation. However following a ruling at the beginning of the trial which permitted Ms Turner to plead reliance on s 14A Limitation Act 1980 the defence was not pursued. Accordingly I shall not mention it further.
Four witnesses gave oral evidence at the trial. Ms Turner gave evidence on her own behalf. Mr Millington, Miss Alden and Mrs Natkus gave evidence on behalf of Bromets. There were a number of conflicts of evidence between the accounts given by Ms Turner and those given by Mr Millington and Mrs Natkus. It will be necessary to resolve some of those conflicts in the course of this judgment.
It will be observed that there are three Defendants other than Bromets named in the claim. Mr Harbottle and Mr Creasey were the two partners of Bromets at the time. They are accordingly properly joined as Defendants. On 15 May 2007 Jackson Heath LLP was incorporated as a limited partnership. Subsequently, on 10 March 2009 it changed its name to Bromets Jackson Heath LLP ("BJH"). It is accordingly clear that BJH can have no responsibility for any negligence that occurred in 2005. In the course of his opening Mr McCue made it clear that no claim was pursued against BJH and it is not necessary to refer to BJH further.
Before dealing with the matter in more detail it is right to acknowledge the considerable assistance I received from the detailed skeleton arguments, concise cross-examination and helpful closing submissions I received in this case. They were of considerable assistance in the preparation of this judgment. I am most grateful to Counsel and the solicitors involved for their help.
The facts
Background
Mr Millington
Mr Millington separated from his former wife in December 1999. He was divorced in 2000. As part of the divorce settlement he had to sell the previous matrimonial home and the office from which he worked. It was common ground that he found the divorce a stressful experience.
Mr Millington was the proprietor of 3 chauffeur hire companies – Yorkshire Chauffeur Co, Minster Ltd and Sovereign Chauffeur Ltd. It emerged in evidence that there were 3 cars and that self-employed drivers were used to drive the cars when necessary.
Ms Turner
Ms Turner was born in 1961. By 2000 she had been married twice. Between 1980 and 1984 she was married to an RAF officer. They grew apart and she divorced in 1984. In 1990 she married again to a "high flyer" who worked in the money markets in London. Although he was a high earner he incurred a lot of debts. Ms Turner had the unfortunate experience of debt collectors knocking on her door in respect of his debts. They divorced in 1994. Ms Turner received very little from the divorce as the house was in negative equity.
Ms Turner returned home to live with her parents in Doncaster. She appears to have been the proprietor of a number of small businesses at various times – Smart Dog Co, Bearability and Poultry Garden. None of these businesses provided substantial income – always below the tax threshold.
By 2000 she was employed part time on a self-employed (agency) basis for the NHS in Doncaster. She described her duties as clerical. It was not clear quite how much she was working. She started working 2 days a week but this gradually increased to 5 days a week. She earned about £25 per day when she worked. She was probably working 4 or 5 days a week by 2000.
The relationship and the acquisition of 23 Burns Way
Ms Turner and Mr Millington met in April 2000. In paragraphs 5 to 10 of her witness statement Ms Turner describes how the relationship increased and how she supported him emotionally through his divorce. As already noted Mr Millington found the divorce and resulting sale of his former home stressful.
In 2001 Mr Millington started to look for a new house. There is a minor dispute between them as to whether he or Ms Turner found 23 Burns Way. It is not necessary to resolve it. Mr Millington accepted that he discussed the acquisition with Ms Turner and that he valued her opinion.
It is common ground that in October 2001 Mr Millington purchased 23 Burns Way for £139,500. This was provided as to a deposit of approximately £50,000 which he had received as part of the divorce settlement and a mortgage of £90,000 from Halifax plc ("Halifax"). Mr Millington instructed Bromets to act for him in the transaction. The conveyancing was carried out by Miss Alden. Mr Millington was registered as the sole proprietor. It is common ground that at all times Mr Millington paid the mortgage instalments and all of the outgoings such as utility bills.
At the time of the acquisition Ms Turner was still working for the NHS and staying with her parents in Doncaster. She said that she used to stay with Mr Millington at 23 Burns Way at weekends and possibly one night during the week.
Sometime, probably in 2002, Ms Turner left the job with the NHS and commenced full time cohabitation with Mr Millington. There was a dispute as to whether she left her job because Mr Millington asked her to or because she was bored with it. I do not need to resolve the dispute. It is common ground that once she moved into 23 Burns Way she helped part time with Mr Millington chauffeur business and also her own small businesses. There was a dispute as to the number of hours she worked for Mr Millington but it was common ground that she was paid about £5,000 per year. She did not contribute to the mortgage or the outgoings of 23 Burns Way but she did contribute to the food and other household expenses. She said she spent all her income on such expenses. Mr Millington said that some of her income was spent on herself.
Ms Turner said that she had a ring of commitment to each other....
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