Peter Willers v Elena Joyce and Another
| Jurisdiction | England & Wales |
| Judge | Chief Master Marsh |
| Judgment Date | 23 May 2017 |
| Neutral Citation | [2017] EWHC 1225 (Ch) |
| Date | 23 May 2017 |
| Docket Number | Case No: HC-2014-001272 |
| Court | Chancery Division |
[2017] EWHC 1225 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Rolls Building, 7 Rolls Buildings
Fetter Lane, London EC4A 1NL
Chief Master Marsh
Case No: HC-2014-001272
Hugo Page QC and Adam Chichester-Clark (instructed by De Cruz Solicitors Ltd) for the Claimant
Paul Mitchell QC (instructed by Laytons Solicitors LLP) for the Defendants
Hearing date: 4 April 2017
Judgment Approved
This judgment relates to an application made by the Defendants to strike out paragraphs 6 – 22 (inclusive), 36, 41(part) sub-paragraph 44(2)(part), 45(1), 45(2), 48(5)(part) and 48(6) of the Re-Re-Amended Particulars of Claim. In the alternative, the Defendants apply for summary judgment concerning the issues raised in sub-paragraphs 45(1) and 45(2). In view of the extent of the Re-Re-Amended Particulars of Claim that are the subject of this application, for convenience, a complete copy of the statement of case forms appendix 1 to this judgment.
The second part of the application concerned a Part 18 request made by the Defendants but it is no longer pursued, the request having been answered.
Procedural background
This claim was issued on 3 March 2014 and yet some three years later it has made very little progress. It has only reached the stage of statements of case having been exchanged and requests under Part 18 being answered. The first cause of the delay was an application made by the Defendant (at that point Mr Gubay was alive; he died on 5 January 2016) seeking a declaration that the courts of England and Wales were not the forum conveniens for this litigation and for a declaration that the claim should be tried in the Isle of Man. That application came before me and judgment dismissing the application was handed down on 14 November 2014.
The next step was for the Defendant to apply for an order striking out the claim on the basis that there were no reasonable grounds for bringing a claim in the tort of malicious prosecution, such tort not being, it was said, part of English law. That application came before Miss Amanda Tipples QC sitting as a Deputy Judge. She handed down judgment on 15 May 2015 striking out the claim but granted permission for an appeal to be leap-frogged to the Supreme Court. The appeal came before the Supreme Court and on 20 July 2016 the appeal was allowed and the order of the Deputy Judge was set aside. The order of the Supreme Court permitted the whole of the claim to proceed to trial.
The Particulars of Claim have been amended on three occasions. On the first occasion the amendments were permitted pursuant to my order dated 14 November 2014 when the Defendant's application to stay the claim was dismissed. The amendments were relatively minor and were designed to cure criticisms about the manner in which the Particulars of Claim had been drafted. The complaints concerned certain passages which referred to witness statements in the underlying claim. A further application for permission to amend came before me on 3 rd March 2015 but was adjourned to be heard with the strike out application.
The second round of amendments was then made pursuant to the order of Miss Amanda Tipples QC dated 9 June 2015. These amendments principally comprised the addition of a new cause of action, namely a claim that Mr Gubay was liable to Mr Willers because the underlying claim was an abuse of process. It is significant to note, however, that at paragraph 11 of the Deputy Judge's judgment, after having summarised the principal elements of the Particulars of Claim, she went on to say:
"Except for the point that the tort does not extend generally to civil proceedings, Mr Livesey QC does not take any issue with the rest of the pleading or make any complaint that the claim has not been properly pleaded."
After the decision of the Supreme Court was known, there were a number of exchanges between the parties concerning further amendments. Perhaps unusually, the Defendants (by then the executors of Mr Gubay's estate had been appointed to carry on the proceedings) applied to the court for an order that the Claimant serve his Re-Re-Amended Particulars of Claim. In a witness statement made by Rebekah Parker of Laytons solicitors (who act for the Defendants) she explained that some amendments were required to the Particulars of Claim consequential upon the decision of the Supreme Court. Having pointed out in correspondence what the Defendants felt was required by way of amendment, and having chased the Claimant for a response, the application was made. Her witness statement confirms that the Defendants were minded to consent to the proposed Re-Re-Amendments provided that some additional amendments were made dealing with the substitution of the executors for Mr Gubay, Mr Gubay's death and other matters. The Re-Re-Amended Particulars of Claim were then served in a form which, apparently, was acceptable to the Defendants.
The Defendants have had a change of heart and have now made the application that came before me. One response to the application made by the Claimant is that it should be dismissed because it is an abuse of the court's process in light of, amongst other things, the circumstances I have outlined.
A defence has been served and at paragraph 10 the Defendants say they have pleaded to paragraphs 6 – 22 of the Re-Re-Amended Particulars of Claim without prejudice to their primary case that the allegations set out in those paragraphs are abusive and in any event irrelevant to the determination of the proceedings. The Claimant has served a Reply.
Background
It is necessary to summarise the background facts so that the claim can be seen in its proper context. Mr Gubay was by the date of his death, according to the Claimant, a very wealthy man (he is said to have been a billionaire). His wealth came from having created a number of successful businesses in various countries including Kwik-Save, a chain of supermarkets, and Total Fitness, a chain of health clubs. He also invested extensively in property development in the United Kingdom. He set up a trust (The Santon Trust) in 1994. The Trust became the beneficial owner of a very large number of companies, albeit that many were dormant; the total number is estimated to be approximately one hundred. Langstone Leisure Limited ("Langstone") was one such company.
In 1986 Mr Gubay appointed the Claimant to work with him and from about 1991 the Claimant became Mr Gubay's 'right hand man'. He retained that position until he was dismissed in August 2009. For a lengthy period of time before his dismissal, he was privy to all the business dealings of Mr Gubay and the companies owned by the Trust, he was appointed a director of most if not all of them, was a signatory on their bank accounts and gave instruction to solicitors in connection with litigation with which the companies were involved.
Mr Gubay is said to have had a considerable appetite for litigation. The Claimant describes him as someone who had the habit of pursuing vendettas against other people and of using litigation, and his very considerable wealth, to that end. At the heart of the claim is the Claimant's assertion that since he was dismissed in August 2009, for reasons which that Claimant says had no basis whatever, he has been the subject of one Mr Gubay's vendettas. I will, in a moment, describe the somewhat convoluted litigation history but before I do so, it is instructive to refer to Mr Gubay's will. It is a short document giving instructions concerning his residuary estate. It makes provision for the disposal of his residual estate in three stages. First, there is the conventional requirement for his funeral and testamentary expenses and any debts to be paid. Secondly, the will provides that the residuary estate is to be held upon trust:
"To apply such funds as may be necessary to continue to conclusion the defence of claims brought against me by Peter Alan Willers [a claim in the Isle of man and the current proceedings] ("the court proceedings"), including any appeals, enforcement proceedings and any other proceedings, which may arise out of the court proceedings ("the litigation"). I DIRECT my Trustees to vigorously progress the litigation. My Trustees shall not deviate from my instructions in respect of the litigation, unless there are exceptional circumstances which deem it necessary to do so, in which case, my Trustees must seek the court's directions."
The residuary estate is thereafter left to the B fund of the Santon Trust. There are, in practice, no restrictions on what the Defendants choose to spend in defending this claim and they are directed to defend it vigorously. Regardless of Mr Gubay's instructions to his trustees, this litigation must be conducted strictly in accordance with the requirements of the overriding objective and no doubt the Defendants understand that excess vigour is unlikely to be helpful to their cause. A similar observation applies to the Claimant.
These remarks are made in the context of the underlying claim brought by Langstone against Mr Willers. In a judgment given at a second pre-trial review in that litigation, Mr Justice Vos (as he then was) remarked:
"3. The parties treat this case as state litigation. They all intend to fight the action, as it appears, to the death. No point is too small to be argued at great length."
The Judge also remarked during the course of the hearing that the claim appeared to be a "grudge match" and there was a "history of bad blood" between Mr Gubay and Mr Willers. Further, and relevantly he described Mr Willers' witness statement as being "ridiculously prolix".
It is plain...
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