Roberts v Gill & Company and Another

JurisdictionEngland & Wales
JudgeLady Justice Arden,Lord Justice Pill,Mr Justice Patten
Judgment Date15 July 2008
Neutral Citation[2008] EWCA Civ 803
CourtCourt of Appeal (Civil Division)
Date15 July 2008
Docket NumberCase No: A3/2007/1437

[2008] EWCA Civ 803





Mr Paul Morgan QC

sitting as a deputy judge of the Chancery Division

Royal Courts of Justice

Strand, London, WC2A 2LL

Before :

Lord Justice Pill

Lady Justice Arden

And Mr Justice Patten

Case No: A3/2007/1437

Mark Roberts
Gill & Co. & Anr.

Mr Guy Adams (instructed by Messrs Chilcotts) for the Appellant

Mr Tom Dumont (instructed by Messrs Barlow Lyde & Gilbert) for the Respondents

Hearing date : 22 April 2008

Lady Justice Arden

The appellant, Mr Mark Roberts (whom I shall call “Mr Mark Roberts”) contends that, in the events which have happened, he is one of the residuary beneficiaries of the estate of his late grandmother, Mrs Alice Margot Roberts (“Mrs Roberts”). In that capacity, he commenced proceedings for damages for professional negligence within the period permitted by the Limitation Act 1980 (“the 1980 Act”) against two firms of solicitors who advised the former personal representatives. They are the respondents to this appeal and I will call them “the solicitors”. Any fresh proceedings brought now by the present administrator of the estate would be outside the period of limitation. Mr Mark Roberts has made an application to amend his proceedings so that he can continue them both in his personal capacity and as a derivative action on behalf of the estate. Mr Mark Roberts contends that this is what the justice of the case requires. The solicitors say that the amendments are not permitted by the Civil Procedure Rules and that in any event the amendments should not be permitted because they will enable Mr Mark Roberts to bring a claim against them in circumstances in which the administrator could not do so.


Mr Paul Morgan QC, sitting as a deputy judge of the Chancery Division, who by order dated 4 April 2007 dismissed the application ( [2007] All ER (D) 89).


(i) The deceased's will and the realisation of her assets


Mrs Roberts died on 27 July 1995. The executors named in the will renounced their right to probate and John Langdon Roberts (“Mr John Roberts”) was appointed as administrator. Mr John Roberts is the appellant's brother.


Clause 7 of the will of Mrs Roberts provides that:

“If my said Grandson John Langdon Roberts shall within one month of formal written demand from my Trustees or within twelve months of the date of my death whichever shall be the earlier pay to the Trustees such sum (or provide security for or indemnity therefor the adequacy of which shall be at the sole discretion of my Trustees) as shall represent the amount of all estate or other duty payable upon or by reason of my death in respect of all my estate whatsoever and wheresoever situate with any interest thereon payable under any statutory provision then in force then and in such case

(a) I give a piece of land [known as The Coppice together with a right of way] to my said Grandson Mark Howland Roberts absolutely

(b) I give all the remainder of my freehold property known as Lower Hellingtown aforesaid not hereinbefore specifically disposed of by this my Will subject to the rights of way hereinbefore granted to my said Grandson John Langdon Roberts absolutely”.


Therefore, if the inheritance tax was paid, or a suitable indemnity or security was provided for the inheritance tax due on the entire estate, Mr John Roberts would inherit a large amount of land.


In default, the property in question fell into residue, thus increasing the value of the amount to which, on the appellant's case, he would have been entitled. Clauses 8 and 9 of the will provide:

“8. If my said Grandson John Langdon Roberts shall not pay the sum specified in clause 7 of this my Will to my Trustees or shall fail to provide security or indemnity to my Trustees to their satisfaction as aforesaid in respect of such sum together with any interest accruing thereon within the period therein provided then in such event I declare that the provisions of subclause (a) and (b) of clause 7 of this my Will shall not take effect and in substitution therefore I give my said freehold property more particularly described in subclauses (a) and (b) of clause 7 of this my Will to my Trustees to hold the same upon the trusts hereinafter declared in clause 9 of this my Will.

9. I GIVE DEVISE AND BEQUEATH all the remainder of my property both real and personal whatsoever and wheresoever not hereinbefore specifically disposed of by this my Will unto my Trustees UPON TRUST to sell call in and convert the same into money with power to postpone the sale calling in and conversion thereof in the absolute and uncontrolled discretion of my Trustees without being liable for loss and to hold the net proceeds and my ready money upon the following trusts:

(a) Upon trust to pay thereout all my just debts funeral and testamentary expenses

(b) Upon trust as to the remainder (hereinafter called “my Residuary Estate” to divide the same into three equal shares and to hold one such one-third share for my daughter JILL MORNA ROBERTS absolutely whom failing upon trust as to such share for her daughter ANGELA WOOD PROVIDED ALWAYS that if both my said daughter and the said Angela Wood predecease me then upon trust as to such one-third share of my Residuary Estate for such of the children of the said Angela Wood who shall be living at my death and attain the age of Eighteen years and if more than one as tenants in common in equal shares and as to the remaining two shares of my Residuary Estate for such of the said MARK HOWLAND ROBERTS and the said JOHN LANGDON ROBERTS who shall be living at my death and if more than one in equal shares as tenants in common.”


By order dated 30 October 2000, John Roberts was replaced as administrator of the estate by Mr Sainter, a partner in the firm of solicitors that act for Mr Mark Roberts in these proceedings (Chilcotts). The administrator discovered that several issues had arisen in connection with the conduct of Mrs Roberts' estate. In particular, he found that all the assets in the estate had been realised and the proceeds paid to Mr John Roberts. It is not clear whether there was any demand for the payment of the inheritance tax or for any indemnity or security for it. Mr John Roberts cannot now be located. The outstanding inheritance tax is estimated at £100,000.

(ii) Mr Mark Roberts' proceedings against the solicitors


By a claim form dated 27 November 2002, Mr Mark Roberts started proceedings against the solicitors for breach of a duty of care owed to him as beneficiary of Mrs Roberts' estate. The particulars of claim allege that the first firm, Gill & Co., were retained by Mr John Roberts to advise him on matters arising from the appointment of a receiver of the assets of Mrs Roberts on 29 September 1994 and after her death on 27 July 1995 to obtain letters of administration and subsequently to assist and advise on the administration of her estate. The particulars of claim allege that Mr John Roberts instructed the second firm, Whitehead Vizard, from April 1997 to advise and assist in the administration of the estate. The particulars of claim allege that inheritance tax payable by reason of the death of Mrs Roberts has never been paid and that no security or indemnity for the same has been furnished by Mr John Roberts. Inheritance tax was payable at the beginning of February 1996, together with the first of ten annual instalments payable thereafter. It is alleged that, notwithstanding this, on 23 July 1996 a legal executive employed by Gill & Co. prepared and witnessed the transfer of the farm referred to in clause 7(b) of Mrs Roberts' will by Mr John Roberts as trustee of the property to himself as beneficiary under the will. The particulars of claim against Whitehead Vizard allege that that firm acted on the sale of the farm by Mr John Roberts to a third party when they knew that the inheritance tax had not been paid. It is alleged that both the estate and Mr Mark Roberts have suffered loss in consequence of these breaches of duty.

(iv) Mr Mark Roberts' application to amend


By an application notice dated 25 August 2006, Mr Roberts applied to the court for permission to continue the proceedings in a representative capacity (as well as in a personal capacity) and to amend the particulars of claim in accordance with amendments annexed to the application. The principal proposed amendments are (1) to add the words “(on his own behalf and representing the estate of Alice Margot Roberts deceased)” after the name of Mr Mark Roberts in the title to the proceedings and (2) to add in the body of the particulars of claim allegations that each of the solicitors acted for the estate and owed a duty of care to the estate, as well as Mr Mark Roberts. The grounds for the application were that the current particulars were insufficient to enable Mr Mark Roberts to proceed with a claim in a representative capacity in addition to a personal capacity pursuant to the CPR 17.4(4) (set out below).

Judgment of the judge


The judge held that a beneficiary could sue on behalf of an estate “in special circumstances”. The judge then set out a lengthy list of potential special circumstances but held that the only two candidates were the fact that Mr Roberts had legal aid funding and the further fact that Mr Roberts could (if leave to amend the proceedings was granted) defeat the limitation defence. The judge rejected these two candidates as special circumstances justifying giving leave to amend. He said that the availability of legal aid did not arise out of the...

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