Niki Christodoulides v CP Christou LLP
| Jurisdiction | England & Wales |
| Judge | Mr Justice Julian Knowles |
| Judgment Date | 13 June 2023 |
| Neutral Citation | [2023] EWHC 1285 (KB) |
| Court | King's Bench Division |
| Docket Number | Case No: QB-2022-002243 |
[2023] EWHC 1285 (KB)
Mr Justice Julian Knowles
Case No: QB-2022-002243
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Michael Rogers (instructed via Direct Access) for the Claimant
Nicole Sandells KC (instructed by DWF Law LLP) for the First Defendant
Benjamin Wood (instructed by Kennedys Law LLP) for the Second Defendant
Hearing dates: 5–6 December 2022
Judgment Approved by the court for handing down
Introduction
This is a claim for professional negligence by the Claimant, Ms Niki Christodoulides, against her former solicitors and counsel (the First and Second Defendant respectively). Mr Costas Christou of the First Defendant was the solicitor with conduct of the case. The Second Defendant practices from chambers in Lincoln's Inn and specialises in Chancery work.
The Defendants have applied to strike out the Claimant's claim, and/or for summary judgment, pursuant to CPR r 3.4(2)(a) and (b) and/or CPR r 24.2 respectively. Their applications are dated 22 August 2022 and 21 September 2022. There is some overlap, although the Second Defendant pursues an additional argument specific to his case.
These rules provide:
“3.4
(1) In this rule and rule 3.5, reference to a statement of case includes reference to part of a statement of case.
(2) The court may strike out a statement of case if it appears to the court –
(a) that the statement of case discloses no reasonable grounds for bringing or defending the claim;
(b) that the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings;
…
24.2 The court may give summary judgment against a claimant or defendant on the whole of a claim or on a particular issue if –
(a) it considers that –
(i) that claimant has no real prospect of succeeding on the claim or issue …”
Further or alternatively, the Defendants seek an order that the Claimant amend her Particulars of Claim, if I am of the view that there are any parts of the claim that have the potential to survive their strike out/summary judgment applications, but are as yet inadequately pleaded.
As is usual in this sort of case, neither Defendant has filed a Defence. However, it is right to record that they strongly deny the allegations of negligence levelled against them.
I have full audio recordings of the hearing which I have consulted when writing this judgment. As will become clear, there is a complex background to this case spanning many years. The materials I have had to consider are voluminous, and that has taken some time.
Factual background
This claim relates to litigation between the Claimant, whom I shall refer to as Niki, with no disrespect intended, and her sister, Androulla Marcou, whom I shall refer to as Andre, again with no disrespect being intended, over the property and estate of their late mother, whom I shall refer to as Agni, on the same basis.
The Claimant claims damages in excess of £8 million from the Defendants, plus interest.
The background is this.
Niki was unsuccessful following trial in two sets of litigation against Andre about their late mother's substantial estate, in 2016/17 and 2021 respectively. Two other sets of proceedings were settled.
Niki instructed the First Defendant to act for her in what I will call ‘the Underlying Claim’ in or around September 2012, and it in turn instructed the Second Defendant to act for her.
The Underlying Claim culminated in the judgment of Mr Recorder Lawrence Cohen KC on 10 February 2017 following a 10 day trial in December 2016 in the Central London County Court ( Christodoulides v Marcou) (the Cohen judgment).
The Underlying Claim was, in fact, composed of two separate claims which were heard together (Claim Nos A10CL026 and B10CL246). These were:
a. Firstly, a claim by Niki to prove in solemn form the will made by Agni dated 7 August 2012 (the Will). Such a claim is, in essence, an application that the court approve the validity of a will where that matter is in issue. (The vast majority of wills are proved in common form, where there is no question over their validity.) It was defended by Andre on the basis of a counterclaim to set aside the Will. Andre's case was that the Will had been procured by the undue influence of Niki over Agni and, so far as it was different, Niki's fraudulent calumny. Fraudulent calumny is where person A poisons the will maker's mind against person B by casting dishonest aspersions on person B's character, when person A knows the aspersions to be untrue or does not care if they are true, to reduce or eliminate person B's entitlement under the will: see Sharpe v Ellis [2022] EWHC 2462 (Ch), [361]–[367]. If this can be shown, then the Will can be set aside. Andre therefore counterclaimed to have a grant of letters of administration in her favour on the basis that there was an intestacy because Agni's Will was invalid. The Recorder referred to Andre's claim as ‘the Calumny Claim’, and said that it was ‘decisive of this part of the case’ [at [1]).
b. Second, a claim by Niki to set aside a transfer by Agni of a property called Hazelmead, Arkley, in favour of both Niki and Andre, on the basis that its execution had been procured by the presumed or actual undue influence of Andre. The Recorder called this ‘the Transfer Claim’. It was advanced on the basis of Niki's capacity to bring it is as the executor of Agni's Will or, alternatively, as a residuary beneficiary thereunder. Effectively, therefore, Niki was seeking to deprive Andre of her share of the beneficial interest in Hazelmead that their mother had transferred to Andre.
At [3] the Recorder explained that:
“3. As for the Transfer Claim each alternative relied upon by Niki to give her capacity to sue depends on the Calumny Claim failing and Agni's Will not therefore being set aside. Procedurally, I have appointed Niki to represent Agni's estate for the purpose of this trial so that Agni's estate will be bound by the result whatever the outcome. Although I had hesitation in appointing Niki to a representative capacity because her personal interest inhibited the balanced view expected of a representative party, I accepted the encouragement of both parties when the issue was canvassed in closing submissions that Niki was the only party with an interest in upholding Agni's Will and it was desirable to appoint her so that there could be a final determination.”
At [6] the Recorder summarised Andre's case on the Calumny Claim. It was, in essence, that Niki had poisoned Agni's mind against Andre by false allegations of theft and wrongdoing, resulting in the making of the Will in Niki's sole favour a few days before Agni's death. He said at [6.5]–[6.6]:
“6.5. When Agni made a will excluding Andre from benefit a few days before her death and leaving everything to Niki, her intention [according to Andre] was still to ensure a more even distribution of her estate between her daughters. The exclusion of Andre was because Agni believed that Andre had stolen assets from her or, if it be different, helped herself to use the words of the professional will writer.
6.6. Agni's belief was based upon fraudulent misrepresentations by Niki that Andre had either stolen or taken a large amount of money from her. These fraudulent misrepresentations poisoned Agni's mind to exclude Andre.”
At [7] the Recorder set out the essence of Niki's case:
“7. Niki's response is to deny that she made any representations to her mother at all, at least any which she did not honestly believe were true. She tried to keep her mother calm and insulate and protect her from the distress caused by what Andre did. Agni excluded Andre from her will because that was her desire and, whatever she may have believed, it was not because Niki had poisoned her mind against Andre by fraudulent misrepresentations.”
The Recorder summarised the Transfer Claim at [9]. It was Niki's case that Andre had procured the transfer of Hazelmead because ([9.5], [10], [12] and [14]):
“9.5 Niki alleges that Andre was a solicitor. Agni respected and looked up to Andre. Andre procured the execution of the transfer by giving advice to her mother that if she did not execute the transfer, the house would be swallowed up in tax when she died. Andre exerted pressure on Agni to execute the transfer immediately.
…
10. Andre completely disputes the factual basis of the claim.
…
12. As to the allegations of advice, Andre accepts that she qualified and practised as a solicitor but she had, to her mother's knowledge, retired from practice at least 10 years before these events and she was not advising her mother at all. The only role she took on was the one of implementing her mother's wishes by preparing the transfer. She did not say that there would be any tax advantage in Agni giving her share of Hazelmead to her daughters — she believed that there would be no such advantage for IHT purposes as her mother, who had serious health problems, was unlikely to survive for even a year. Equally, reserving the ability to use Hazelmead would mean that the gift would not work for IHT purposes. She was simply implementing the desire of her mother to give away to both of her children many of her assets in her lifetime and enjoy the pleasure of giving.
…
14. So in summary, Andre says:
14.1. Her participation in the process of the transfer was as a daughter and not as an adviser — the fact that she happened to be a solicitor before she retired 10 years before the transfer is an irrelevance. She gave no advice and was under no duty to advise. All she did was to implement her mother's wishes by drawing up a transfer. She says that Niki has failed to satisfy the first requirement for...
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