Peter David Andrews and Others v Zoe Isobel Andrews and Another

JurisdictionEngland & Wales
CourtChancery Division
JudgeJudge Hodge QC
Judgment Date15 April 2014
Neutral Citation[2014] EWHC 1725 (Ch)
Date15 April 2014
Docket NumberCase No. 3LV30311

[2014] EWHC 1725 (Ch)

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

LIVERPOOL DISTRICT REGISTRY

Liverpool Civil & Family Courts

35 Vernon Street

Liverpool

Merseyside

L2 2BX

Before:

His Honour Judge Hodge QC

sitting as a Judge of the High Court

Case No. 3LV30311

Between:
Peter David Andrews (1)
Gillian Ruth Andrews (2)
Timothy David Andrews (3)
Claimants
and
Zoe Isobel Andrews (1)

(a child, by Stephen Anselm Fox, her litigation friend)

Timothy Robson Fairclough (2)
Defendants

Counsel for the Claimants: JAMES GRANBY

The Defendants appeared In Person

Judge Hodge QC
1

This is my extemporary judgment in a claim by three individuals: Mr Peter David Andrews, Mrs Gillian Ruth Andrews, and Dr David Timothy Andrews (as claimants) against two defendants, Zoe Isobel Andrews (who is a child and acts by Mr Steven Anselm Fox, her litigation friend) and Mr Timothy Robson Fairclough (as defendants)—claim number 3LV30311.

2

By a claim form issued in the Liverpool District Registry of the Chancery Division under Part 8 of the Civil Procedure Rules on 4 th November 2013, the claimants seek to rectify a voluntary discretionary settlement (known as the Andrews Family Trust) created by an inter vivos deed dated 1 st November 2010. That deed was made between the first and second claimants, Mr and Mrs Andrews (as settlors), and the first, second and third claimants, Mr and Mrs Andrews and their son Timothy (as trustees). The settlement created a lifetime settlement in favour of the granddaughter of Mr and Mrs Andrews and the daughter of Dr Andrews. The first defendant, Zoe Isobel Andrews, who is the daughter of Dr Andrews and his wife, is a child. She is sued on behalf of herself and also any future spouse or spouses and civil partner or partners. The second defendant is sued on behalf of all unborn or unascertained discretionary beneficiaries of the Andrews Family Trust.

3

By clause 8 of the settlement, there is an ultimate default trust in favour of a charity, the National Society for the Prevention of Cruelty to Children, but its interest only arises in the event of a failure or determination of the prior trusts, which is a most unlikely event; so unlikely indeed that it can, for all practical purposes, be ignored. In an email dated 4 th October 2010 the solicitor involved in the drafting of the trust, Mr Edward Bennett, described clause 8 as "standard", commenting "In reality it will not matter as the default charity is extremely unlikely to benefit". I am satisfied that its interest is so remote that there is no need for it to be joined as a party to these proceedings.

4

The evidence in support of the rectification claim is contained within three witness statements (all dated 31 st October 2013) from each of the three claimants. Although there are exhibits to all three witness statements, the fullest range of exhibits is that to the witness statement of the first claimant, Mr Peter David Andrews (exhibits PA1 through to PA7). Happily, this rectification claim is not opposed by anyone. Acknowledgments of service have been filed by both the second defendant, Mr Timothy Fairclough, and also by Mr Stephen Anselm Fox, who is a remote cousin of the second claimant, Gillian Ruth Andrews, and through her of the first defendant Zoe, her granddaughter. There is also a certificate of suitability filed by Mr Fox.

5

Both defendants have taken legal advice. Mr Fox tells me he has taken advice from a firm of solicitors in Marlow called LGP. The second defendant has shown me a letter from solicitors he has consulted, Cripps Harries Hall, dated 7 th April 2014. In that letter Mr Fairclough has been advised that the proposed rectification is for the benefit of the beneficiaries he represents and that his position of supporting the proposed changes to the trust is entirely reasonable, given that he represents the interests of persons who stand to benefit from the proposed changes. The position of Zoe is not one whereby she will benefit from the proposed changes because the effect will be to admit other beneficiaries in competition with her, but the most immediate competing beneficiary is her younger sister, Amy. Notwithstanding that, Mr Fox, who acts on Zoe's behalf, has been advised that he should not oppose the rectification sought now that his solicitors have seen the relevant witness statements and evidence.

6

Of course, it is for me, as the trial judge, to satisfy myself that the rectification claimed is something to which the claimants are entitled. The leading authority is the recent decision of the Court of Appeal in the case of Day v Day [2013] EWCA Civ 280, [2014] Ch.114. There the Court of Appeal held that in the case of a voluntary unilateral settlement, the requirement in the case of a contract for an outward expression of accord, as precondition to a decree of rectification, has no application. At paragraph [22] Sir Terence Etherton C said that what is relevant in such a case is the subjective intention of the settlor. It is not a legal requirement for the rectification of a voluntary settlement that there should be any outward expression, or objective communication, of the settlor's intention, equivalent to the need to show an outward expression of accord for rectification of a contract for mutual mistake. The Chancellor did however go to say that although there is no legal requirement for an outward expression, or objective communication, of the settlor's intention in such a case, it will plainly be difficult, as a matter of evidence, to discharge the burden of proving that there was a mistake in the absence of an outward expression of intention.

7

Lord Justice Lewison, in a concurring judgment, concluded (at paragraph [50]), in agreement with the Chancellor, that in the case of a voluntary disposition it was the subjective intention of the donor or settlor that counted. Lord Justice Elias, the third member of the Court of Appeal, delivered a concurring judgment. At paragraph [21] of his judgment the Chancellor cited from the seminal judgment on rectification for unilateral mistake of a voluntary settlement of Mr Justice Brightman in the case of Re Butlin's Settlement Trust [1976] Ch 251, at pages 260 to 261. There, Mr Justice Brightman made it clear that the equitable remedy of rectification was available, not only in a case where particular words had been added, omitted, or wrongly written, as the result of careless copying or the like; it was also available where the words of the document were purposely used, but it was mistakenly considered that they bore a different meaning from their correct meaning as a matter of true construction. In such a case, the court would rectify the wording of the document so that it expressed the true intention.

8

Those are the legal principles that fall to be applied in the present case. I turn then to the supporting evidence, none of which has been...

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