Marc White (as executor and trustee of the will of Joseph Robson Deceased) v Jennifer Matthys (as trustee of the Joseph Robson Will Settlement) and Others
| Jurisdiction | England & Wales |
| Judge | Richard Sheldon QC |
| Judgment Date | 31 January 2014 |
| Neutral Citation | [2014] EWHC 295 (Ch) |
| Court | Chancery Division |
| Date | 31 January 2014 |
| Docket Number | Claim No: HC13A02296 |
[2014] EWHC 295 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
IN THE ESTATE OF JOSEPH ROBSON DECEASED
Richard Sheldon QC
(sitting as a Deputy Judge of the High Court)
Claim No: HC13A02296
Alex Troup (instructed by Mark White & Co) for the Claimant Patrick Harrington (in person)
Clive Jefferson (in person)
Philip Capon (instructed by Brethertons LLP) for the Fourth and Fifth Defendants
Hearing date: 11 December 2013
Introduction
In this Part 8 Claim, the Claimant seeks directions pursuant to CPR r. 64.2(a) as to how the estate of Joseph Robson ("the Deceased") should be distributed. The claim raises issues as to the proper construction and effect of the Political Parties Elections and Referendu ms Act 2000 ("the 2000 Act"). Part IV of the 2000 Act makes provision for the prohibition of foreign donations to registered political parties. The issues in the present case are, in summary, whether there has been a breach of that prohibition on the facts of this case and, if so, what consequences should follow. The political party to which these proceedings relate is the British National Party ("BNP") which, it is common ground, was a registered party for the purposes of the 2000 Act.
At the trial of the Claim which took place before me, no party sought to cross examine the makers of the various witness statements. The background facts as appears from those witness statements were therefore not in dispute.
Background
The Deceased was bom on 4 th July 1928 in Ashington, Northumberland, England. He subsequently married and had two sons, the Fourth and Fifth Defendants. Their parents divorced in the 1970s. The Deceased bought 19 Willow Tree Crescent, Lutterworth, Leicestershire ("the Property") in about 1987 or 1988. In 1992, when he retired, the Deceased sold the Property and moved to Spain, living first at an address in Torrevieja and latterly in Orihuela, both situated near Alicante. The Fourth Defendant also moved to Spain between 2000 and 2003 when he ran an estate agency business with his father. After the Fourth Defendant returned to England in 2003, he was regularly in touch with his father and at one point in about 2008–9, discussed the possibility of his father moving back to England, but his father did not do so. So far as the Fourth and Fifth Defendants are aware, the Deceased did not own any property in England after he moved to Spain in 1992.
The Deceased executed a will dated 30 th March 1995 by which he left his Spanish estate to the Fourth Defendant. The value of this estate has turned out to be of the order of £1200.
The Deceased also executed a will dated 29 th November 2006 ("the 2006 Will") under which he appointed the Claimant to act as his executor and trustee and, by Clause 7, left his residuary estate outside Spain to the BNP.
The Deceased died on 21 st March 2010, aged 81. The Claimant took out a grant of probate on 8 November 2010. According to estate accounts dated 8 December 2011, the net estate was worth approximately £366,000, of which the main asset worth approximately £365,000 comprised various holdings with Close International Asset Management Fund Ltd, Jersey, and the only Spanish asset was a bank account worth £135. No distribution of the estate has yet been made by the Claimant.
On 23 July 2010, the solicitors acting for the Fourth and Fifth Defendants wrote to the Claimant's then solicitors contending that the residuary gift in the 2006 Will in favour of the BNP failed because the Deceased was not registered on an electoral register in the 5 years before his death and hence was not a permissible donor for the purposes of the 2000 Act, and that the residuary gift accordingly passed on intestacy to them.
On 12 th September 2011 three bequest trustees of the BNP (namely Nicholas Griffin—the Chairman of the BNP, the Second Defendant—the Treasurer of the BNP, and Adam Walker—a member of the National Executive of the BNP), executed a Deed of Variation which sought to vary the 2006 Will by gifting the residuary estate under the 2006 Will to the Trustees of the Joseph Robson Will Settlement ("the Settlement"). The Trustees of the Settlement comprised Nicholas Griffin, the Second Defendant and the Third Defendant, who according to his witness statements has never been a member of the BNP but does work as a Local Assistant to Nicholas Griffin. It appears from the terms of the Settlement (which were attached to the Deed of Variation) that it was formed for the purpose of receiving the gift under the Deed of Variation. By a later Deed of Appointment dated 20 November 2012, Nicholas Griffin retired as a trustee and the First Defendant, his daughter, was appointed to act as a trustee in his place
By Clause 1 of the Deed of Variation, it was provided that the three bequest trustees of the BNP "hereby vary clause 7 of the [2006 Will] so that the Deceased's Residuary Estate is instead gifted to and is held by the Trustees of [the Settlement] and on the terms of that Settlement which are set out in the Schedule to this Deed…". By Clause 2 the Trustees of the Settlement accepted the gift made by clause 1 and upon the terms there stated. By Clause 3, it was provided that, if the gift to the Settlement failed, the Residuary Estate was gifted to the Sixth Defendant, the Judge Learned Hand Foundation, a Northern Irish Charity. Clause 4 provided that if the gifts to the Settlement or the Sixth Defendant failed, the Deed would be void and of no effect ab initio.
The Settlement, which was attached to the Deed of Variation, defines the "Trust Fund" as meaning the Residuary Estate of the Deceased under the 2006 Will, all accretions thereto, and monies investments and property paid or transferred to the Trustees of the Settlement and accepted by them as additions to the Trust Fund. The Settlement and the trusts created under it are described as "charitable". The objects of the trusts "so far and so far only as the same are legally charitable" are set in out in Clause 5 which is widely drafted.
By a letter dated 18 October 2011, whose contents were adopted by the First to T hird Defendants as part of their submissions, solicitors for the bequest trustees of the BNP responded to the question posed by the Claimant which was identified as being: "Can a political party legally enter into a variation of the will of the [Deceased] which is legally effective and binding on all?". At page 3 of that letter the solicitors for the BNP assert:
"The constitution of the [BNP] provides the Bequest Trustees are empowered to give a valid receipt for any gift. See Clause 8.12
The constitution of the [BNP] provides that the Bequest Trustees are empowered to deal with any rights, powers, privileges or interests of the [BNP] may have as beneficiary arising out of a will. See Clause 8.15 Accordingly at common law in respect of the [Deceased] and the [BNP] there is a valid assignment of a chose in action by Bequest Trustees."
The letter goes on to contend that Deed of Variation did not contravene the provisions of the 2000 Act. I will need to deal with the legal argument by reference to the 2000 Act in that letter when I come to consider the rival sub missions.
The proceedings
The present proceedings were commenced by a claim form issued on 17 th January 2013. By these proceedings, the Claimant seeks directions enabling him to make distributions of the Deceased's estate. The First to Third Defendants and the BNP say that the residuary estate should be distributed to them. The Fourth and Fifth Defendants say that the gift to the BNP fails and that the residuary estate passes as on an intestacy, ie to them.
The claim came before Mr Justice Morgan at a directions hearing on 25 th July 2013. The Claimant's application for a prospective costs order was granted at that hearing. Directions were also given for trial, including an order that notice of the claim should be served on the Sixth Defendant pursuant to CPR r.19.8A. The Second Defendant was also appointed to represent the BNP in this action pursuant to CPR r.19.6.
Notice of the claim was served on the Sixth Defendant and Mr Kerr, its trustee, filed an Acknowledgement of Service indicating an intention to defend the claim and served a witness statement. In the event, the Sixth Defendant did not attend and was not represented at the hearing before me.
At the hearing, the Claimant was represented by Mr Troup and the Fourth and Fifth Defendants were represented by Mr Capon. The First to Third Defendants were initially represented by Robert Grierson of Counsel but in the course of his submissions before me his instructions were withdrawn whereupon further submissions were addressed to me in person by Mr Harrington, the Third Defendant, including adopting Mr Grierson's skeleton arguments. Mr Harrington told me that he had the authority of the First Defendant to address me on her behalf. Mr Harrington's submissions were adopted in person by Mr Jefferson, the Second Defendant.
The 2000 Act
The legislative history of the 2000 Act is helpfully set out in Lord Phillips' judgment in R (Electoral Commission) v. Westminster Magistrates Court [2011] 1 AC 496 ("the Westminster Magistrates Court case"), in particular at paragraphs 17–24. In summary, the origin of the 2000 Act was the Labour Party's 1997 election manifesto commitment to...
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