Re Smith (Deceased); Kicks and another v Leigh
| Jurisdiction | England & Wales |
| Judge | Mr Stephen Morris QC |
| Judgment Date | 25 November 2014 |
| Neutral Citation | [2014] EWHC 3926 (Ch) |
| Docket Number | Case No: HC13D01654 |
| Court | Chancery Division |
| Date | 25 November 2014 |
[2014] EWHC 3926 (Ch)
Mr Stephen Morris QC
(Sitting as a Deputy High Court Judge)
IN THE ESTATE OF JOYCE SMITH (DECEASED)
Case No: HC13D01654
IN THE HIGH COURT OF JUSTICE
Chancery Division
Royal Courts of Justice
Strand, London, WC2A 2LL
Constance McDonnell (instructed by Henmans Freeth, Solicitors) for the Claimants
The Defendant appeared in person
Hearing date: 24 November 2014
(A) Introduction
This action, commenced on 25 April 2013, concerns the estate of the late Joyce Smith ("Mrs Smith") who died, aged 85, on 7 December 201The Claimants are Mr Paul Kicks and Mrs Lisa Martin, two of Mrs Smith's grandchildren. They are the children of one of Mrs Smith's two daughters, the late Norma Kicks and her husband Mr Barry Kicks ("Mr Kicks" or "Barry Kicks"). Norma Kicks herself died from a brain tumour in January 2004. In June 2008, Barry Kicks married Barbara Sargent. Mrs. Smith's other, surviving, daughter, Mrs Georgina Leigh is the Defendant in this action. The Defendant's husband is Desmond Leigh. Mr and Mrs Leigh have two children, Richard and Graham.
Mrs Smith was survived by her brother, Roger Coppock and his wife Pauline; by her sister-in-law Mrs Joyce Allen and by her sister Heather, who lives in Florida. Barry Kicks, Roger and Pauline Coppock and Joyce Allen all live in the Oxford area. I refer to these individuals, together with the Claimants, as "the Oxford family". The Defendant and Mr Leigh live in Maidstone in Kent.
The Claimants' claim
In addition to seeking orders in relation to the grant of probate of Mrs Smith's last will made in February 2008 ("the 2008 will"), the Claimants make a claim in respect of the proceeds of sale of Mrs Smith's home at 49 Home Close, Wolvercote, Oxford OX1 8PT ("the Property"). The Property was sold on 23 April 2010. The net proceeds of sale, of £292,899.92 ("the Proceeds") were transferred, on the instructions of Mrs Smith, by the conveyancing solicitors to a bank account in the joint names of Mr and Mrs Leigh. The Defendant claims that the transfer of the Proceeds was a gift to her from her mother.
The Claimants claim that the transfer by Mrs Smith to the Defendant of the Proceeds should be set aside on either of two grounds, namely that:
(1) Mrs Smith lacked the mental capacity to make such a gift or transfer;
(2) The gift or transfer was procured by the Defendant's exercise of undue influence over Mrs Smith.
The Claimants seek the following relief: an order that the Defendant account to the estate for the proceeds of sale of the Property and pay to the estate any sums found due on the taking of account; alternatively, in their capacity as residuary beneficiaries under Mrs Smith's will, by way of derivative claim against the Defendant personally, an order that the gift or transfer by Mrs Smith to the Defendant of the proceeds of sale of the Property be set aside and that the Defendant repay to Mrs Smith's estate the sum of £292,899.92 with interest thereon since 23 April 2010.
As regards probate, the Defendant has been removed as an executor and letters of administration have now been granted to Cripps Trust Corporation: see paragraph 175 below.
The Defendant's position at trial
At the trial, the Claimants were represented by Ms Constance McDonnell. The Defendant appeared in person, assisted by her husband Mr Leigh.
Previously, at a hearing on 3 October 2013, attended by counsel for the Claimant and by the Defendant in person, Master Price had ordered that the Defendant be debarred from defending the claim until further order. The background to the making of that order was that the Defendant had, for a number of months, failed to comply with previous orders; most particularly the Defendant had not filed a defence complying with CPR 16.5, had not provided documents and had in general refused to participate in the proceedings. The history in summary is as follows.
On 1 May 2013, the Defendant refused to accept service of the proceedings by recorded delivery. On 4 June 2013, the Defendant filed a defence containing a narrative of events between the family. Prior to the first case management conference, the Claimants' solicitors, Henmans, wrote to the Defendant pointing out that her defence did not comply with the rules, and enclosed a copy of the relevant rules. The Defendant did not respond. On 16 July 2013 Master Price made an order for directions, which included an order for service of a defence compliant with CPR 16.5 and an order for provision of documents. The order was sent to the Defendant by the Court and by Henmans. On 2 August 2013 the Defendant sent a manuscript document to Henmans, purporting to be a defence, in which she asserted simply that all claims and allegations were denied and referring back to the defence previously filed on 4 June 2013. On 22 August 2013 the Claimants applied for an unless order on the basis of the Defendant's non-compliance with the order of 16 July 2013. Henmans wrote to the Defendant to explain the application. By order made on 23 August 2013 and entered on 29 August 2013, Master Price ordered that, unless the Defendant complied with the 16 July order within a further 14 days, the defence would be struck out and the Claimants would be entitled to proceed as if the Defendant had not defended the claim. This order was served on the Defendant. On 3 September 2013, the Court wrote to the Defendant, passing on specific observations from Master Price advising the Defendant to take advice as a matter of urgency in relation to compliance with the Court orders. On 6 September 2013, the Defendant responded to the Court and to Henmans, saying that she was about to take advice from a solicitor. On 24 September 2013 the Court, in turn, responded to the Defendant's letter, passing on Master Price's further comment, advising that an application had to made on notice to vary the unless order of 23 August. No such application was made. The Claimants then applied for an order for judgment in default of compliance with the order of 23 August.
That application was heard on 3 October 2013, when the debarring order was made. It is clear (from a follow up letter from Henmans received by the Defendant) that at the hearing itself Master Price had tried to impress upon the Defendant how important it was for her to participate in the proceedings. He also explained the effect of the shifting of the burden of proof in relation to presumed undue influence. In the follow up letter, Henmans once again strongly advised the Defendant to seek independent legal advice and explained that, as matters then stood, the Defendant would not be able to participate in the trial.
The Defendant did consult solicitors, Brachers, to whom Henmans supplied all relevant orders. But at no point did Brachers go on the record as acting for the Defendant and by the end of January 2014 Brachers were no longer involved. Thereafter Henmans kept the Defendant informed as to the progress of the case. On 29 November 2013 the Claimants served on the Defendant, and filed with the Court, witness statements of fact and on 20 December 2013 one further witness statement was filed and served.
At the outset of the trial, in the light of the order of 3 October 2013 and the history, the Claimants submitted that the Defendant's participation should be limited to the putting of questions to witnesses and the making of argument, and that the Defendant was not entitled to give or call any evidence nor put forward any positive case. Whilst the Defendant made no formal application for relief from the sanction of debarring, I explained the effect of the 3 October order to the Defendant and Mr Leigh and gave further consideration as to whether, in all the circumstances, the Defendant should be allowed to participate to a greater extent than suggested by the Claimants.
I concluded nevertheless that there were no grounds for any such relief from the sanction of debarring and that to allow the Defendant at such a late stage to put forward a positive case or to adduce evidence for the first time would work substantial unfairness on the Claimants. They would have had no advance notice of such a case by way of witness statements and no disclosure of documents which might be relevant to such a case. In my judgment, the history set out above indicates that the Defendant had had every chance to participate in proceedings; both Henmans and the Court had gone out of their way to assist the Defendant in understanding the process. The Defendant had had ample opportunity, over a period of more than nine months, to seek to vary the terms of the 3 October order. Instead the Defendant's conduct throughout had been characterised by a refusal to engage in the court process or to put forward a positive case, as well as a refusal to comply with court orders and directions relating to the pleading of a defence and to disclosure of documents. Making full allowance for the fact that the Defendant was largely acting in person, I nevertheless concluded that it would be unfair to the Claimants and undermining of the court's process to vary the terms of the 3 October order and to allow the Defendant now to seek to bring forward a positive case. In the event the trial proceeded on the basis of the Claimants calling their witnesses and Mr Leigh, on behalf of the Defendant, questioning them and making oral submissions.
I conclude this introduction by observing that it is clear from all the evidence before me that feelings between the Claimants and the wider Oxford family, on the one hand, and the Defendant and Mr Leigh, on the other, have been running high for some considerable time and remain so. The dispute between the two sides—and in particular between the...
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