Miles Baynton-Williams v Ashley Mark Baynton-Williams
| Jurisdiction | England & Wales |
| Judge | Master Clark |
| Judgment Date | 19 August 2019 |
| Neutral Citation | [2019] EWHC 2179 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: PT-2018-000322 |
| Date | 19 August 2019 |
[2019] EWHC 2179 (Ch)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
PROPERTY TRUSTS AND PROBATE LIST (ChD)
Royal Courts of Justice, Rolls Building
Fetter Lane, London, EC4A 1NL
Master Clark
Case No: PT-2018-000322
Harry Martin (instructed by Penningtons Manches) for the Claimant
The Defendant in person
Hearing dates: 7 January & 12 April 2019
Approved Judgment
This is the judgment of the Court.
This is my judgment following a directions hearing in this claim, listed in unusual circumstances.
Parties and the background
The claimant, Miles Baynton-Williams and the defendant, Ashley Baynton-Williams are brothers. Their mother, Margaret Baynton-Williams died intestate on 6 November 2013, aged 76.
The parties were the only children of the deceased, and the only beneficiaries entitled to her estate under the intestacy rules. On 15 April 2015 a grant of letters of administration was made to them jointly.
The defendant had moved into his mother's house, 17 Marble Hill Close, Twickenham, Middlesex TW1 3AY (“the Property”) on 25 April 2009, after she had been admitted to hospital in February 2009. She never returned to live at the property, moving from hospital to a nursing home, where she remained until she died. The defendant remained living there after her death, until completion of its sale on 22 June 2015. His evidence is that he contributed significant funds in respect of his mother's bills, including her care home bills; and that delay by the solicitors acting in the administration of the estate (Stone Rowe Brewer) in reimbursing him meant that he was unable to re-house himself. He has had no permanent place to live since 22 June 2015.
The claim was commenced on 26 April 2018, seeking the defendant's removal as administrator and requiring him to account to the estate for his rent free occupation of the Property. This included the period when their mother was alive, on the basis that she lacked capacity to consent to his occupation. The defendant did not respond to the claim: he did not acknowledge service or file any evidence in opposition to it.
On 5 June 2018 Nancy Miller, the director of Dexters, the firm of estate agents responsible for the sale of the property, sent an email (“the Email”) to the claimant and his solicitor, Jeremy Bristow in the following terms:
“I would estimate that if on the market the property for rentals, 17 Marble Hill Close would have achieved £1500 per calendar month, however it was not in a rentable condition, therefore would not have been able to be legally let without considerable remedial works undertaken.
In terms of the condition of the property it was in very poor condition, the property in its entirety had not been looked after or maintained well, the carpets were threadbare, there was damp in various points throughout the house and the electrics weren't safe. Plumbing was leaky and the boiler hadn't been used for 2 years therefore was presumed not working. From memory the garage was in a very poor state. It was saleable as it was a project, however the buyer did work to the property immediately upon completion.”
On 19 July 2018, the claimant instructed a valuation expert, Christopher Magowan (“the expert”), to provide a report as to the rental value of the Property. In his report dated 6 August 2018 (“the Report”), he sets out the material with which he was provided by the claimant's solicitor to prepare it:
(1) Sales particulars for the property (prepared by Dexters);
(2) Photographs of the property taken by the purchaser in June 2015 – the copies in evidence were in black and white, and it appears the expert was not provided with colour copies.
The expert was not provided with the Email, although it was plainly relevant to his valuation and dealt with matters which would not have been apparent from the material which was provided to him, particularly the fact that the boiler had not worked for 2 years. The claimant relied upon the fact that the Email being a communication passing between his lawyers and a potential witness was privileged, so that he was entitled not to provide it to the expert. However, it would appear from the defendant's evidence that the claimant himself was aware of the factual matters set out in the Email.
In the Report, the expert referred to the property being “below average” in its condition. He did not of course refer to or rely upon the Email because he was unaware of it. He expressly sets out his (apparently incorrect) assumption that there was gas-fired central heating. The sum claimed by the claimant on the basis of the expert's rental valuation is about £67,000.
A hearing was listed for the directions or disposal of the claim on 21 August 2018. The defendant attended that hearing. This was the first occasion on which he engaged with the claim. He has acted in person throughout the claim, and appeared in person before me. In dealing with the claim, I have in mind, therefore, that I must ensure that the parties are on an equal footing, whilst also ensuring compliance with rules, practice directions and orders: CPR 1.1.
At that hearing I made an order removing the defendant as administrator and requiring him to account for his rent free occupation of the Property from 25 April 2009 to 1 July 2015 (the latter date is, it is common ground, an error, and should be 22 June 2015). I also gave permission to the claimant to rely upon the Report. I granted permission to the defendant to file and serve evidence as regards the value of his occupation of the Property, and to send any written questions and accompanying evidence to the expert.
On 10 September 2018, the defendant emailed the expert (copying in the claimant's solicitor and Ms Miller) in the following terms:
“— what description of the condition of the property were you given?
— principally, where you made aware of structural defects to the property present during my mother's occupation? Notably, there had been a flood from the attic water tank, through the roof of the bathroom into the kitchen, thus affecting the roofs of the bathroom and kitchen on to walls of the kitchen, which were left wholly unrepaired there was also possible substance, with structural damage visible affecting the wall of the upstairs front large bedroom
Similarly, the wood of the garage doors and rear garden fences was were rotten beyond repair.
As a regular visitor to the property, plaintiff was aware of these and other problems.
— were you given contact details for Nancy Miller of Dexters? Ms Dexter is the estate agent who receive the instruction to sell the property and made the original examination of the property… Ms Dexter has good recollection of the condition.”
The defendant then set out the 2 nd paragraph of the Email and continued:
“From the above, I would highlight the comment that “the electrics weren't safe”.
It seems appropriate to remark that as an “expert” witness from the world of estate agency, Ms Dexter's eyewitness description of the property would be essential to a proper valuation of the property.
Accordingly, I would ask that you contact Ms Dexter —
nancymiller@dexters.co.uk — who is expecting to hear from you — so that she can give you a proper account of the condition of the property, which I hope will assist you in revising your valuation.”
On 11 September 2018, the expert replied by email, confirming what he had set out in his report as the materials provided to him and continuing:
“This was the only evidence available to me at the time of my report. I was not aware that the property suffered from structural defect or was in the condition you describe.
I did not speak to Nancy Miller but I did attend her office where I spoke with the letting staff and received details of some of the comparable evidence referred to.
In analysing the comparable evidence I adjusted the evidence to reflect the condition of the property. I would say that I deducted in the region of 20% from what I would consider to be the full market rent to reflect the condition.”
The defendant replied by email on 14 September 2018:
“I would take issue of your characterisation of the kitchen as “modern but basic” — the kitchen units were about 40 years old; the cooker, washing machine and fridge (the latter 2 were on their last legs) were probably 20 years old, and I would expect all to have been replaced immediately …
I would simply like you to confirm that in your professional opinion the property as described by Ms Miller in her email to the plaintiff and now supplied yourself (which you have had the opportunity to verify)
— was in a condition where it could legally be rented “as was” and
— that you confirm your original valuation of the rental property “as was”.”
My order of 21 August 2018 required the defendant to file and serve his evidence by 4pm on 18 September 2018. The defendant filed a witness statement (“the first statement”) on that date (49 minutes late), but did not serve it. His evidence (in a statement dated 15 February 2019) was that having filed the statement late, he waited for confirmation from the court that it had been accepted, which was not forthcoming.
On 19 September 2018, the claimant's solicitors wrote to the defendant by email setting out para 3 of my order of 21 August 2018 and continuing:
“That deadline has now passed and you may not make any further submissions.
As far as I am aware, you have not filed and served any evidence and your written questions to Mr Magowan are comprised of your previous emails dated 10 and 14 September 2019.”
The defendant did not reply to this email. His evidence (in the statement dated 15 February 2019) was that he took the claimant's solicitors' statement at face value.
The...
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