Robertrobinson v Gerard Robinson and Another
|England & Wales
|Mr Justice David Richards
|15 October 2003
|Judgment citation (vLex)
| EWHC J1015-2
|Case No: HC01C04519
|Queen's Bench Division (Administrative Court)
|15 October 2003
 EWHC J1015-2
THE HIGH COURT OF JUSTICE CHANCERY DIVISION
Royal Courts of Justice
London WC2A 2LL
The Honourable Mr Justice David Richards
Case No: HC01C04519
Mr PJ Kirby (instructed by Healys) for the claimant
Mr Gordon Bennett (instructed by Davenport Lyons for the defendants
Hearing dates: 6 —7 Oct 2003
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this judgment and that copies of this version as handed down may be treated as authentic.
In this judgment I give my reasons for various orders made on 7 October 2003 in this action and on the Part 20 counterclaim brought by the defendants against the claimant.
The trial of the action and counterclaims started at 2pm on Monday 6 October 2003. The claimant (Robert) is a brother of the defendants (Gerard and Elizabeth).
Counsel for Robert opened his case and various preliminary applications and other matters were dealt with on 6 October. The next step was for Robert to give oral evidence which would have started the following morning. In view of what in fact happened, it is important to record that the witness statements in this case contained numerous allegations of lying against all the parties and against other witnesses. Robert accused not only Gerard and Elizabeth but also his parents of lying in their statements. Gerard and Elizabeth alleged in their defence and witness statements that Robert had forged their signatures on a number of mortgage applications forms, deeds of mortgage and property transfer documents. At 10.30 am on Tuesday 7 October I was given a handwritten notice of discontinuance signed on Robert's behalf by his solicitor. I was told that Robert had left court at 10.00 that morning and had not been seen since. I was told by his counsel that beyond the instructions to serve the notice of discontinuance, he had left his solicitor without instructions and without funds. Counsel for Gerard and Elizabeth indicated that he wished to proceed with the Part 20 counterclaims and also to apply for appropriate freezing orders against Robert. In view of the speed of developments, he needed time to prepare his application and the matter came back before me at 2pm.
It is necessary to set out a brief summary of the issues in the case, which essentially concerned three residential properties. The first is 25 Nelson Road, Corby, Northamptonshire which has been owned by the parties' parents for many years and is their home. In 1988 they agreed to help Robert by allowing their house to be used as security to raise funds for a loan of £30,000 to Robert. It was common ground that the mechanics adopted were a transfer of the legal title of the house to Elizabeth and a mortgage loan of £30,000 by Mortgage Express to Elizabeth, with that sum (less some costs) being paid to Robert on terms that he would be responsible for the mortgage payments. Subject to the mortgage, the house remained the beneficial property of the parents. It was the defendants' case that Robert, Elizabeth and their parents agreed that Robert would repay the loan and discharge the mortgage within five years. This is now established as a fact, as Robert and Elizabeth have given evidence before me on the counterclaim which was not of course challenged in cross-examination or controverted by any other evidence.
In 1991 a further sum of £16,000 was advanced by Mortgage Express and secured on 25 Nelson Road. It was Elizabeth's case that this further advance had been obtained by Robert without her consent and that he had tricked her into signing the relevant papers.
In 1995 and 1996 Robert procured the purchase of two residential properties, Honey Pot Cottage, 13 Little Oakley, Kettering, Northamptonshire and 147 Rowlett Road, Corby, Northamptonshire. Honey Pot Cottage was purchased for £42,000 of which Robert paid £2,000 and the balance was borrowed on mortgage from Halifax plc. 147 Rowlett Road was purchased for £32,000 of which Robert paid £1,600 and the balance was borrowed on mortgage from the Market Harborough Building Society. Gerard was registered as the proprietor of both properties and all relevant purchase and mortgage documents were in his name. It was Gerard's case that he had no involvement in either of these purchases or their related mortgages and that his signature was forged on the relevant documents. His evidence was, and again it was not in the event contradicted, that he first discovered these matters in 1997. It is common ground that, subject to the mortgages and the agreement to which I refer later, both properties were beneficially owned by Robert.
Neither Elizabeth nor Gerard have sought to establish as against the various mortgage lenders that they were not liable in respect of the loans taken out in their names. It is now clearly too late for them to do so, having dealt with the lenders over the past few years on the basis that they are liable. But it was common ground when the case was opened by Robert's counsel that Robert has at all times been required to indemnify Gerard and Elizabeth against their liability on all the mortgage loans referred to above. On a number of occasions in the course of the 1990s Roberts failed to meet payments due on the mortgage loans and from late 1999 he has made almost no payments in respect of any of the loans. The evidence given by Gerard and Elizabeth established that as at 6 October 2003 they had paid without reimbursement £16,698 in respect of the loans secured on Nelson Road and £13,579 in respect of the loans secured on Honey Pot Cottage.
In circumstances to which I shall return, Gerard...
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