Punford v Gilberts Accountants (A Firm)
| Jurisdiction | England & Wales |
| Judge | SIR CHRISTOPHER SLADE,LORD JUSTICE HENRY |
| Judgment Date | 05 May 1998 |
| Judgment citation (vLex) | [1998] EWCA Civ J0505-8 |
| Docket Number | NO: LTA 98/5429 |
| Court | Court of Appeal (Civil Division) |
| Date | 05 May 1998 |
[1998] EWCA Civ J0505-8
IN THE SUPREME COURT OF JUDICATURE
CMS1
COURT OF APPEAL (CIVIL DIVISION)
(Application of Plaintiff for leave to appeal)
Royal Courts of Justice
Strand
London WC2
Lord Justice Peter Gibson
and
Sir Christopher Slade
NO: LTA 98/5429
MR K HAMER (instructed by Messrs Collins, Herts WD1) appeared on behalf of the Applicant
The Respondent did not appear and was not represented
Tuesday 5th May 1998
This is a renewed application by the Plaintiff, Mr Mark Punford, for leave to appeal from an order made on 16th January 1998 by Mr Griffith-Williams QC, sitting as a Deputy High Court Judge. By this order the Deputy Judge dismissed an appeal by the Plaintiff from a decision of Master Rose given on 14th November 1997 ordering that the Plaintiff's action against the Defendant firm, Gilberts Accountants, be struck out on the grounds that the statement of claim discloses no reasonable cause of action. Leave to appeal from the Deputy Judge's decision was refused on paper by a single Lord Justice, Roch LJ, on 25th March 1998.
The Defendants' striking-out application was made not only under Order 18, rule 19 of the Rules of Supreme Court, but also under the inherent jurisdiction of the Court so that affidavit evidence is admissible, and has been filed on both sides. Where a statement of claim, as presented, discloses no reasonable cause of action, but the Court takes the view that the case could be improved by amendment, it is open to the Court to direct amendment of the pleadings instead of striking them out.
At the hearing before the Judge he was invited to have regard to a draft amended statement of claim and to two witness statements adduced by the Plaintiff, none of which were before the Master. Without objection from Defendants' counsel, he had regard to these two statements and the amended pleading. I follow a similar course on this application.
The Plaintiff's version of the relevant facts as set out in his statement of claim, together with the proposed amendments thereto, is briefly as follows. At all material times the Defendants were a firm of chartered accountants. The Plaintiff's father, the late Norman Punford ("the testator") was at all material times one of their clients. They acted for him for more than 40 years prior to his death. In about the mid-1980s the testator sought the Defendants' advice as to how best to give effect to his concern to make provision for his family following his death and to minimise the tax liability of his estate. The Plaintiff was the youngest of the testator's five children —one of them, I think, was a stepchild. In about 1986 to 1987 the testator told him that on his death he intended to leave his property, known as 2 Ellswick Road, Harpenden, Herts ("the property"), to the Plaintiff, subject to his widow, Mrs Punford, having the right to reside there during her life.
On 27th January 1988 the testator executed a will. The Plaintiff says that the Defendants prepared, caused and advised him to execute it. By this will, which is in evidence, he appointed Mr Lovett and Mr Keeble, two partners in the Defendant firm, as his executors and trustees, and left his residuary estate on trust to pay the income to his wife during her life, and thereafter on trust to transfer the property to the Plaintiff and the remainder of his residuary estate to his other three children and his stepdaughter.
Some two-and-a-half years later, on or about 20th July 1990, the testator executed a transfer and deed of gift ("the transfer") by which he transferred the legal and beneficial interest in the property from his sole name into the joint names of himself and Mrs Punford. The Plaintiff pleads that the Defendants "prepared, caused and advised" the testator to execute this transfer. The evidence before us shows that in two respects this allegation is not sustainable. A letter written by the Plaintiff's solicitors to Mr Lovett on 17th May 1994 shows that a solicitor was instructed to draft the transfer. Furthermore, a statement of the Plaintiff's mother, put in evidence by the Plaintiff, says that it was the testator himself who gave the instructions for the transfer of the property into joint names. It was, I assume, the Defendants who then instructed the solicitor.
The Plaintiff pleads that by 1990 the testator had become increasingly worried about saving tax on his death. I quote from his proposed amended statement of claim:
"The deceased understood that this act would save tax, and his intentions were solely to perfect the gift he intended to make to the Plaintiff under his Will and to minimise further the amount of inheritance tax which would be payable upon his and Mrs Punford's death."
The Plaintiff pleads that the testator at no time before his death ever expressed a change of mind in relation to benefiting the Plaintiff and had no grounds to do so. At the time of the transfer the Plaintiff was continuing to live in the property and was the only one of the testator's children not to own a house. I quote again from the proposed amended statement of claim:
"The Defendants knew or ought to have known that the object of the transfer was solely to save tax while leaving the property undisturbed to pass on the death of the deceased and Mrs Punford to the Plaintiff."
Most unfortunately for the Plaintiff, if that was the object of the transfer, it singularly failed to achieve it. About six months later, on 19th February 1991, the testator died. Mrs Punford has said in a statement that she was quite happy to honour the testator's wishes and to leave the...
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