Phillip Gregory v Julianna Moore

This is an appeal by the second and third defendants against part of an order made by Chief Master Marsh on 3 August 2018, following a case management conference. The part appealed against is an order that one paragraph and certain words in the following paragraph be struck out from points of claim served by the second and third defendants.

Certain other paragraphs and parts of the prayer for relief were also struck out but there is no appeal against those aspects.

The Chief Master subsequently issued a reserved judgment giving reasons for the striking out and for refusing permission to appeal.

Background

By way of background, the claim relates to the estate of Barry Pring. The first defendant had married Mr Pring about a year before his death. The second and third defendants are Mr Pring's mother and brother.

Mr Pring died in the Ukraine in February 2008, having been struck by a vehicle travelling at speed whilst he was standing on the hard shoulder of a motorway. The vehicle did not stop, and the identity of the driver is not known.

Mr Pring died intestate and had no children. He was survived by his parents and brother. His father has since died, and his mother and brother are the executors of his father's estate.

The claimants, who are partners in Stephens Scown LLP, hold letters of administration in respect of the deceased's estate, and their interest in the proceedings is limited. They were not represented before me.

Mr Pring's mother and brother believe that the first defendant was implicated in Mr Pring's death. A verdict of unlawful killing was recorded at an inquest held in the UK in 2017, but that verdict has been overturned and a fresh inquest is due to be heard, I understand, in the summer of this year. No criminal charges have been brought in the Ukraine.

Section 1 of the Forfeiture Act 1982 refers to the “forfeiture rule”, being:

“… the rule of public policy which in certain circumstances precludes a person who has unlawfully killed another from acquiring a benefit in consequence of the killing”.

By virtue of sub-section (2):

“… a person who has unlawfully aided, abetted, counselled or procured the death”, is treated as having unlawfully killed the deceased.

If the second and third defendants are right, the first defendant may therefore be precluded from claiming any interest in Mr Pring's English estate.

The claim was first commenced in 2008. It is not necessary to go into details about much of the history, but for a long period the issue of forfeiture was effectively deferred.

In August 2017 the first defendant applied for an order that the forfeiture issue should be delayed no longer. This application was opposed by the other defendants, but Deputy Master Lloyd decided in December 2017 that it was time for “the brake to come off” (in his words) and ordered the second and third defendants to serve points of claim on the question of whether Mr Pring was unlawfully killed.

Deputy Master Lloyd's order, dated 5 December 2017, required the claim to be fully particularised. It also provided for the first defendant to serve points of defence.

Points of claim and defence were provided, but the first defendant declined to plead to certain paragraphs of the points of claim, including the paragraphs the subject of this appeal, on the basis that they were outwith the terms of Deputy Master Lloyd's order.

This led to an application by the second and third defendants seeking permission, if required, to bring those parts of the claim to which objection had been made and requiring the first defendant to plead them.

The matter came before Chief Master Marsh for a case management hearing, at which certain parts of the points of claim were struck out. Certain other amendments were permitted and case management directions were made.

The strike-outs that are the subject of this appeal relate to paragraphs 8 (17) and (18) of the points of claim. It is worth reading these out in full:

“(17) In September 2008, the first defendant applied to the court in Kiev, claiming full ownership of the Geroiv Stalingradu Prospect apartment. She falsely informed the judge that she had bought the apartment with her own personal money and was entitled to full ownership of it. She subsequently withdrew her claim.

(18) In truth, the first defendant married the deceased for his money, took advantage of him financially when they were married, and caused his death to rid herself of him and for her own financial benefit when it was likely that the marriage would otherwise have soon have [sic] come to an end.”

I should explain here that the apartment referred to was one of two properties in which the deceased and the first defendant had interests in the Ukraine, that paragraph 8(17) was struck out entirely, and that in paragraph 8(18) what was struck out were the words:

“…took advantage of him financially when they were married…”.

It is also worth clarifying that the parties accept that if the deleted text that is the subject of this appeal is not included in the points of claim, then the second and third defendants will not be able to lead evidence on them, bearing in mind among other things the very serious nature of the allegation of unlawful killing and the terms of Deputy Master Lloyd's order requiring the claim to be fully particularised.

The trial of the claim is currently listed for 10 days in October or November of this year.

The Chief Master's decision

Chief Master Marsh noted that strictly, Rule 16 and Practice Direction 16 did not apply to points of claim that are ordered to be served in a Part 8 claim, but considered that the relevant provisions did apply, if necessary by analogy. He pointed to the requirement that the facts relied on in a claim should be stated clearly and concisely, Rule 16.4(1)(a), and to the particular need for that here given the seriousness of the allegation, and the fact that such an allegation is very rare in a civil case where there has been no criminal trial.

The Chief Master also pointed out that there is an express power to strike out in Rule 3.4(2), and he referred to Rule 3.1(2)(m) which empowers the court to:

“… take any other step or make any other order for the purpose of managing the case and furthering the overriding objective…”.

He also referred to the court's inherent powers to control claims. He commented at paragraph 15 that it seems to have been assumed at the hearing that the court had power to (in his words) “prune” a statement of case to exclude peripheral matters and confine it to matters that are essential to the case a party wishes to put forward.

The Chief Master noted that the evidence against the first defendant was circumstantial, but the key allegation was that the deceased was deliberately killed and the first defendant was complicit in that and intended the outcome. He also made the point that there is no reason in principle why circumstantial evidence could not be used to establish unlawful killing; and that the manner in which the claim was being pursued militated in favour of the second and third defendants being permitted to rely on a broad range of factors such that the court should be cautious to prune their case.

The Chief Master concluded that two earlier paragraphs in the points of claim should not be struck out. These are paragraphs 8(15) and (16). In those paragraphs the second and third defendants plead that the first defendant stood to gain from Mr Pring's death; that she had misused the deceased's monies intended for refurbishment of the apartment that I referred to earlier; and that, had Mr Pring inspected that apartment, which was supposed to be being refurbished, as he had intended to do in February 2008, he would have discovered that the first defendant had behaved dishonestly by not spending money that Mr Pring had provided for the purpose of the refurbishment.

The Chief Master said that these allegations were directly relevant and should not involve expensive factual inquiry. They were not, therefore, deleted.

In contrast, the Chief Master said that sub-paragraph (17) related to events that took place six months after the death and were at best peripheral. If established they would put the first defendant in a bad light, but they were some distance from supporting an intention...