Rita Alay Libera Del Curto v Julian Enrique Del Curto
| Jurisdiction | England & Wales |
| Judge | Master Cook |
| Judgment Date | 18 August 2023 |
| Neutral Citation | [2023] EWHC 2106 (KB) |
| Court | King's Bench Division |
| Docket Number | Case No: FJ 207/22 |
[2023] EWHC 2106 (KB)
Master Cook
Case No: FJ 207/22
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Seth Cumming (instructed by Joseph Hage Aaronson LLP) for the Applicant
Richard Dew (instructed by Forsters LLP) for the 1 st Respondent
Hearing date: 24 July 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on 18 August 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
This is an application by the First Respondent to set aside a registration order made by Master Eastman on 20 December 2022, which registered a judgment of 3 February 2022 given by the Tribunale di Sondrio under the Foreign Judgements (Reciprocal Enforcement) Act 1933.
Pursuant to an order made by me on 12 July 2023 this hearing is limited to a determination of whether the order of Master Eastman is to be set aside on the following mandatory grounds set out in s.4(1) of the 1933 Act:
i) That there is not “ payable under [the judgment] a sum of money”, such that it would be deemed to have jurisdiction under s.1(2)(b) of the 1933 Act.
ii) That the Tribunale di Sondrio had no jurisdiction s.4(1)(a)(ii) because;
a) the judgment was not given in an action in personam such that it would be deemed to have had jurisdiction under ss.4(2)(a);
b) in any event, the court is deemed to not have jurisdiction under s.4(3)(a) (overruling s.4(2)(a) because the subject matter of the proceedings was immoveable property outside the country of the original court (reflecting the common law position).
A Brief Background to events
The facts giving rise to the Judgment and Registration Order have been set out in the witness statements. I note that some of the Applicant's narrative account is contested however it is common ground that the issues I have to decide are ones of law and it has not been necessary for me to resolve any of the disputed factual issues at this stage.
The matter arises out of the death of Davide Del Curto (the “Deceased”), an Italian citizen, who was born in 1927 in Italy and who died in Chile in a helicopter accident in 1983, aged 55.
The Deceased had three children, who are the parties in this matter. The Respondents Julian and Gloria are, respectively, the Deceased's son and daughter by Ms Edith Prieto Del Curto (“Edith”), from whom he had separated in 1967. Julian was born in 1952 and lives in England. Gloria was born in 1964 and lives in Chile. The Applicant Rita is the Deceased's daughter by Ms Alay Leventhal (“Alay”), with whom the Deceased was in a relationship from 1971 until his death in 1983. Rita was born in 1980 in the United States and lives in England. Hereafter I shall refer to the parties by their first names.
The Deceased was a very wealthy businessman and had significant assets in several different jurisdictions. The extent of his estate is unclear, however it is common ground that, as at his death, it included: three apartments and a house in Sondrio, Italy; properties and shares in companies in Chile; and bank accounts in Switzerland and other jurisdictions. The Deceased was treated as having died intestate insofar as his Chilean assets are concerned. He left a will, but it did not deal with his Chilean assets, and none of the parties to the current action were beneficiaries of it.
It is Julian's case the administration of the Deceased's Chilean estate was handled in Chile by his company lawyers. The estate was divided between Julian (then living in the United Kingdom), Gloria and their mother in accordance with Chilean law. As Rita was an illegitimate child, she was not entitled to any inheritance under Chilean law (as then in force), even had the company lawyers been aware of her.
In 2003 Rita instituted proceedings before the courts of Santiago, Chile, in an attempt to reopen the Deceased's Chilean succession. This was dismissed at first instance. Her appeal was then dismissed by the Appeal Court of Santiago in 2005.
At the time of his death the deceased was an Italian citizen and it is Rita's case that under Italian law she was entitled to 2/9ths of the Deceased's worldwide estate. On 30 July 2008 Rita therefore issued a petition against Julian and Gloria in the Tribunale di Sondrio, Italy, seeking, pursuant to Article 533 of the Italian Civil Code, a declaration against Julian and Gloria that she was a daughter and therefore a universal co-heir of the Deceased, and to order Julian and Gloria to make restitution to her, pursuant to Art. 533 of the Italian Civil Code, of the assets owed to her pro rata, or their cash equivalent, plus interest and revaluation to the present date.
The course of the Italian proceedings
Julian and Gloria opposed Rita's petition, with opposition being led by Julian. Their principal arguments were:
i) (on jurisdiction) The Italian Courts lacked jurisdiction, because: (a) the petition concerned real assets located in Chile, and the Deceased's principal economic assets were in Chile; (b) succession had been opened by them in Chile and not Italy; (c) there was no proof the Deceased was, at the time of his death, an Italian citizen; and/or (d) they alleged that the matter had already been finally determined by the Courts of Chile;
ii) (on procedure) all documents filed by Rita were invalid due to an alleged lack of power of attorney of Rita's Italian legal Counsel;
iii) (on limitation) Rita's petition was time-barred under Italian law; and
iv) (on the merits) Rita was not a daughter of the Deceased, and therefore not an heir under Italian law.
On 19 February 2013 Tribunale di Sondrio gave judgment on jurisdiction (the “2013 Jurisdiction Judgment”) determining and declaring that the Italian Court had jurisdiction. It held that:
i) Rita's petition was, “ specifically inheritance action and not a simple real action”.
ii) Italian law was applicable because the Deceased was found to be an Italian citizen. Similarly, the Italian Courts were declared to have jurisdiction since the Deceased was an Italian citizen.
iii) The judgment of the Court of Santiago, Chile, did not deprive the Italian Courts of jurisdiction.
Julian and Gloria appealed the 2013 Jurisdiction Judgment to the Milan Court of Appeal, which dismissed their appeal on 11 May 2015.
Julian and Gloria then appealed to the Supreme Court of Cassation, the highest court of appeal in Italy, which dismissed their appeal on 10 February 2017.
The case progressed to an investigation on the merits before the Tribunale di Sondrio. In a partial judgment on the merits, dated 18 April 2019 (the “2019 Merits Judgment”) the Tribunale di Sondrio held that:
i) Julian and Gloria's objection that the petition was time-barred due to the expiry of a 10-year statutory limitation period was rejected.
ii) Rita was the natural daughter and, therefore, co-heir of the Deceased.
iii) Julian and Gloria had not been in possession in good faith and Rita was entitled to a share equivalent to 1/3 of the share of 2/3rds (i.e. 2/9ths) of the entire estate of the Deceased.
iv) Julian and Gloria had engaged in “ highly vexatious procedural conduct” and made “ spurious objections”, including, for example, seeking DNA tests which they then refused to participate in.
v) Julian and Gloria were ordered to pay a provisional sum of €17,002,414.70.
Julian appealed the 2019 Judgment to the Corte Appello Milano. That appeal was dismissed by the Corte Appello Milano in 2022 (the “2022 Appeal Judgment”), apart from the order for the payment of a provisional sum, which was overturned.
The court-appointed expert's appraisal of the Deceased's estate was delivered on 1 March 2021 (the “ Valuation Report”). The Valuation Report quantified the Deceased's estate, after revaluation to 31 December 2020, at USD 50,717,564. Inclusive of simple interest to 31 December 2020, the Valuation Report quantified the Deceased's estate, after revaluation to 31 December 2020, at EUR 59,099,084.
On 4 February 2022 the Tribunale di Sondrio issued the Judgment. The 2022 Judgment is the final and definitive judgment on the merits in the matter. It is common ground that it is enforceable in Italy.
The Judgment held and ordered:
i) The Valuation Report, and in particular the estimated value of the Deceased's heritable assets at USD 50,717,564 as at 31 December 2020, was “ fully endorsed and adopted”. Julian and Gloria had “ not demonstrated that they possessed the hereditary assets in good faith”. They were “ well aware they had a sister and knowingly and stubbornly denied her existence in order not to share the assets received on the death of their father; having enjoyed the hereditary assets, [Julian and Gloria] must account for them and pay the proceeds [to Rita]”.
ii) Julian and Gloria were ordered to pay a sum equivalent to 2/9ths of the inheritance as per the Valuation Report, i.e. EUR 13,133,129.77, inclusive of simple interest to 31 December 2020, plus a further sum of EUR 50,000 in relation to their “ highly vexatious” and bad faith actions in the proceedings, plus costs totalling EUR 140,684.12, and further interest and costs.
Julian failed to pay the sums due under the Judgment or any part thereof. Rita accordingly applied for registration in England under the 1933 Act, where Julian lives. The Registration Order was made on 22 December 2022. It was served on Julian on 31 January 2023 and on Gloria on 7 February 2023.
Julian applied on 14 February 2023 to set the Registration Order aside, relying on four grounds, the first two of which are the mandatory grounds which are being considered at this hearing. Gloria has not so applied and is now out of time to do so.
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Forced Heirship Forced Into England And Wales (In Del Curto v Del Curto)?
...heirship regimes can be recognised. Footnotes 1. In full: Rita Alay Libera Del Curto v Julian Enrique Del Curto and Gloria Del Curto [2023] EWHC 2106 (KB). 2. Most notably, the Foreign Judgments (Reciprocal Enforcement) Act The content of this article is intended to provide a general guide ......