Richard Henry Jennison v Mrs Glenda Joy Jennison (as personal representative of the estate of Graham Jennison deceased)
| Jurisdiction | England & Wales |
| Judge | Pearce |
| Judgment Date | 04 April 2022 |
| Neutral Citation | [2022] EWHC 792 (Ch) |
| Docket Number | Case No: F30MA160 |
| Court | Chancery Division |
[2022] EWHC 792 (Ch)
IN THE COUNTY COURT AT MANCHESTER
BUSINESS AND PROPERTY WORK
ON APPEAL FROM DISTRICT JUDGE CARTER
Manchester Civil Justice Centre
1 Bridge Street West
Manchester
M60 9DJ
His Honour Judge Pearce
Case No: F30MA160
Mr Giles Gunstone (instructed by Larkman Lodh) for the Defendants/Appellants
Ms Rowena Meager (instructed by Irwin Mitchell LLP) for the Claimants/Respondents
Hearing date: 7 March 2022
This judgment was handed down in private at 10 a.m. on 4 April 2022. I direct that no official shorthand note shall be taken of this judgment and that copies of this version as handed down may be treated as authentic.
INDEX
| INTRODUCTION | Para 1 | Page 2 |
| BACKGROUND | Para 11 | Page 5 |
| THE ISSUES | Para 16 | Page 6 |
| THE DECISION SUBJECT TO APPEAL | Para 17 | Page 6 |
| THE CASE FOR THE DEFENDANTS/APPELLANTS | Para 21 | Page 8 |
| THE CASE FOR THE CLAIMANT/RESPONDENTS | Para 41 | Page 16 |
| DISCUSSION | Para 48 | Page 18 |
| CONCLUSION | Para 65 | Page 22 |
| CONSEQUENTIAL MATTERS | Para 67 | Page 22 |
INTRODUCTION
This is my judgment on an appeal from a decision of District Judge Carter handed down on 8 October 2020. It follows the hearing of oral submissions on 7 March 2022. Throughout this judgment, I shall retain the description of the parties at first instance as “Defendants” and “Claimant” rather than “Appellants” and Respondent.”
By a Part 7 claim issued on 18 February 2019, the Claimant, the widow of Graham Jennison (“the deceased”) and the personal representative of his estate, brought a claim against the First Defendant (the brother of the deceased) and the Second Defendant (the First Defendant's wife) for declaratory relief and enquiries, together with a claim for an order for sale and for compensation, on account of the Defendants' alleged breach of trust in dealing with land near Church Street, Wales, Sheffield (“the land”).
The Defendants defended the claim, in part, on the ground that the Claimant allegedly did not have standing to bring the claim.
Ultimately, the claim was listed for trial before Judge Carter on 8 October 2020. The trial commenced with the hearing of a summary judgment/strike out application (“the Application”) brought by the Defendants on the grounds of the Claimant's alleged lack of standing to bring the claim, which was said to render the proceedings a nullity. The Application was dismissed and the trial proceeded. Judge Carter granted relief to the Claimant on her claim.
By an Appellants' notice dated 12 November 2020, the Defendants sought permission to appeal the decisions of Judge Carter, both in refusing the Application and in granting relief to the Claimant on the substantive claim. That application was dealt with on paper by His Honour Judge Stephen Davies on 26 October 2021, when he refused permission on all grounds save ground one, relating to standing and relief under CPR Part 3, these being the grounds upon which the Application was determined against the Defendants. Judge Davies also directed that the issue of statutory relief under Section 61 of the Trustee Act 1925 be remitted to Judge Carter, he having inadvertently failed to deal with the point, but it being possible for him to do so on paper, and without a further hearing.
Judge Davies expressed sympathy for Judge Carter, noting that he had to deal with a large number of issues. I too have sympathy for Judge Carter. It would appear from the sizeable bundles of documents which still lie on the court file that he was presented with a very large amount of material at the trial. I note that the Defendants' skeleton argument for trial ran to 69 paragraphs with many sub paragraphs employing a bewildering combination of letters and Roman numerals to distinguish the sub paragraphs.
The appeal has been conducted in a similar way, the Defendants' skeleton argument beginning with seven grounds of appeal and then running to 103 paragraphs of text over 23 pages. That skeleton argument was supplemented by a further Defendants' skeleton argument dated 26 March 2021, comprising 31 paragraphs of text over five pages. Then when permission was granted, the Defendants filed a yet further skeleton argument dated 8 December 2021 comprising 71 paragraphs over 19 pages, limited to the one narrow ground on which permission had been granted. The last of these skeleton arguments was supported by a bundle of authorities comprising 56 items (the index revert refers to 53 items, but three of the items are not given separate tab numbers). Thus, by the time of the hearing of the appeal, the Defendants had produced a huge amount of written material upon which it was said reliance was being place.
For all of this, the argument that is now advanced in this appeal, namely that the law of New South Wales in respect of the role and status of an executor differs from that of England and Wales, is one that was not raised at all by the Defendants before Judge Carter and was only raised in a peripheral manner in the last skeleton argument in support of the appeal.
The Defendants acted as Litigants in Person, at trial, although I understand that they were supported by a McKenzie Friend. At paragraph 25.1.2 of the first skeleton argument in support of the appeal, the Defendants complain as to the conduct of the trial that, “ When the First Defendant was unable to assist the Judge on his stipulation that he be taken to precise areas of the Authorities being relied upon, the Judge should reasonably have allowed the First Defendant (but did not) a few minutes in which to refer to his McKenzie Friend with a view to them being in a position to highlight the passages concerned. The failure to do so was unfair.” There is some suggestion that the McKenzie Friend is responsible for the various skeleton arguments, the unwieldy bundle of authorities and the unfocused way in which the Appeal was conducted until the hearing before me on 7 March 2022. If this is correct, I strongly doubt that allowing the First Defendant time to speak to his McKenzie Friend would have made matters any easier for the Judge at trial. In any event, permission was refused on the grounds of alleged unfairness and an application in that regard was not renewed in front of me.
The Defendants were represented on the oral hearing of the appeal before me by Mr Giles Gunstone of counsel. It would appear that Mr Gunstone was instructed late and no skeleton argument was provided in substitution for those referred to above. I do not criticise Mr Gunstone for this. Short of simply disavowing all of the previous documents and presenting a short skeleton argument to make his points, there was little that he could do to better the situation that had been created by the previous preparation of this appeal. However, rather than waste time and money on that, he prepared and delivered focused oral submissions dealing with a small number of cases. As he said, the point upon which permission had been granted was a narrow one, albeit of importance to this case and no doubt others. I am grateful both to him and to Ms Meager of counsel, who appeared both at first instance and on the appeal for the Claimant, for their efficiency in dealing with the narrow ground on which the appeal was pursued.
BACKGROUND
The Deceased and the First Defendant purchased the land in 1990 as tenants in common. The land is adjacent to the M1 motorway in Sheffield and comprised three main parcels. The Deceased, at that time living in New South Wales, died on 11 July 2007.
The death of the Deceased appears not to have come to the attention of the Defendants until 2009. In any event, thereafter, in three transfers occurring in 2011, 2014 and 2019, the Land was transferred in a manner which the Claimant says is inconsistent with the terms of the trust upon which it was held.
Following the Deceased's death, a grant of probate in respect of his estate was issued out of the Supreme Court of New South Wales in favour of the Claimant. That grant of probate was resealed in England and Wales on 25 November 2019. However, as noted above, this claim had already been issued in February 2019.
By their original defence, the Defendants made no admission that the probate granted to the Claimant in New South Wales granted “ any jurisdiction (sic) to the Claimant in respect of any part of [the Deceased's] estate which may exist within England and Wales.”
By order dated 1 October 2020, the Claimant was granted permission to amend the Particulars of Claim. Permission was granted for service of an Amended Defence. Whilst I anticipate that the court had in mind, in granting permission to amend the Defence that the re-pleading would be responsive to the re-pleading of the Claimant's case, in fact the Amended Defence expanded on the issue of jurisdiction in the following terms:
“ 1A. At the time that the Claimant issued the Claim Form (18 February 2019) purporting to bring the claim as personal representative to the estate of Graham Jennison deceased, the Claimant as a foreign Executor had no legal standing or capacity to do so and the Claim is liable to be struck out as being void and a nullity. The Defendants set out their case on the Claimant's lack of standing/capacity in more detail below…
4. It is not admitted that the said Probate confers any jurisdiction to the Claimant in respect of any part of the said Graham Jennison's estate, which may exist within England and Wales. The said Probate having been resealed in England and Wales on 25 November 2019 it is admitted that the resealed...
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Glenda Joy Jennison (as personal representative of the estate of Graham Jennison deceased) v Richard Henry Jennison
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