The Right Honourable Edward Richard Lambton, Earl of Durham v Lady Lucinda Lambton and Others (Defendants/Applicants)
| Jurisdiction | England & Wales |
| Judge | Sir Terence Etherton,The Chancellor |
| Judgment Date | 18 November 2013 |
| Neutral Citation | [2013] EWHC 3566 (Ch) |
| Date | 18 November 2013 |
| Docket Number | Case No: HC13D01777 |
| Court | Chancery Division |
2013 EWHC 3566 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
THE CHANCELLOR OF THE HIGH COURT
Sir Terence Etherton
Case No: HC13D01777
Dominic Dowley QC and Prof Jonathan Harris (instructed by Withers LLP) for the Claimant/Respondent
Alexander Layton QC and Jessica Hughes (instructed by Bird & Bird LLP) for the Defendants/Applicants
Hearing dates: 9 th and 10 th October 2013
Judgment Approved by the court for handing down
(subject to editorial corrections)
The defendants have applied by an application notice dated 12 June 2013 ("the application") for a declaration pursuant to CPR 11(1) that the court should not exercise its jurisdiction to hear the claim on the grounds that (a) England is not the appropriate forum in which to bring the claim and/or (b) it is an abuse of process. The first and third defendants also seek an order that the claim be stayed or set aside. The second defendant also seeks an order that service of the claim on her be set aside and that the order of Master Bragge dated 8 May 2013 permitting service of the proceedings on her out of the jurisdiction be discharged. The defendants say that the matters in dispute with the claimant ought to be resolved in pending proceedings commenced by the defendants in Siena, Italy.
The dispute between the parties arises out of a claim by the defendants to a share of property owned by the late Lord Lambton.
Background
The claimant, the Right Honourable Edward Richard Lambton, is the 7 th Earl of Durham. The defendants, Lady Lucinda Lambton, Lady Beatrix Mary Nevill and Lady Gabrielle Ann Lambton, are his sisters. Their father was Antony Frederick Lambton ("Lord Lambton"). Lord Lambton had two other children, but they are not parties to these proceedings and have played no part in them.
Lord Lambton resided in Italy from the late 1970s. He made a statutory declaration on 8 September 2003 stating that his domicile was in Italy and so making Italy his domicile of choice. He died on 30 December 2006.
By his will dated 26 August 2004 Lord Lambton left all his real and personal estate to the claimant. In his will he declared that he was domiciled, resident and ordinarily resident in Italy. On 1 March 2007 probate in respect of Lord Lambton's estate in England and Wales was granted to the claimant out of the Winchester District Probate Registry. The estate was sworn for probate to have a gross value of £12,100,360 and a net value of £11,800,360. On the present evidence, it comprised four valuable paintings and a small amount of cash.
During his lifetime Lord Lambton owned valuable estates in England and Italy as well as valuable items of personal property. On the present evidence he transferred those assets, apart from those sworn for probate, or at any event the majority of them to others before his death, including to trustees of various trusts. The defendants claim that, under Italian law, as Lord Lambton's children, they are each entitled to a one-ninth share of Lord Lambton's "heritable property", the value of which is calculated taking into account the value of gifts of movable and immovable property made during his lifetime. There are substantial disputes between the parties as to the effect and application of Italian law on the facts of the present case.
The English proceedings
The Claim Form in the present proceedings was issued on 8 May 2013. The Particulars of Claim commence with brief details about Lord Lambton and the parties to the proceedings. Paragraph 7 refers to Lord Lambton's will and its provisions, which I have already described. Paragraph 8 states that no challenge to the will has ever been made. Paragraph 9 refers to the claims made by the defendants to a share of Lord Lambton's property pursuant to Italian Law. Paragraphs 9 and 10 say as follows:
"9. Three of the Claimant's five sisters (the Defendants, Lady Lucinda Lambton, Lady Beatrix Nevill and Lady Ann Lambton) have, through their legal representatives, claimed that they are entitled to a reserved share of Lord Lambton's estate pursuant to Italian law. This claim was first expressed in written form in a letter from Pavia & Ansaldo, Italian lawyers acting for the Defendants, dated 2 September 2011. The claim was amplified in an undated position paper sent to Withers LLP (solicitors acting for the Claimant) on 6 February 2012, following a video-conference meeting between Withers LLP and Pavia & Ansaldo, held on 20 December 2011 in the offices of Bird & Bird LLP (the Defendants' London solicitors). Further correspondence between Withers LLP and Bird & Bird LLP has failed to resolve the position and the Defendants persist in their claims.
10. In particular, the Defendants assert that, pursuant to Italian law:
i. they have a right to a share of Lord Lambton's estate;
ii. in order to calculate the value of Lord Lambton's estate (for the purposes of calculating each Defendant's share of the estate) assets which Lord Lambton owned but gave away during his lifetime have to be added back to what was left at death in order to calculate a fictitious patrimony of Lord Lambton (the 'clawback' issue);
iii. the irreducible share of each Defendant is to be calculated as a proportion of this increased figure;
iv. each Defendant's claim is to be enforced in the first instance by a personal claim against the Claimant."
Paragraph 13 states that, at the date of his death, Lord Lambton owned no immovable property. Paragraph 14 states that the assets passing through Lord Lambton's hands during his life included immovable property and shares in a company owning immovable property forming part of the Cetinale Estate in Sovicille, near Siena, Italy ("Cetinale"). Paragraph 14 refers to the incorporation of Casuarina Limited and the purchase of Villa Cetinale and some surrounding land in March 1977 by that company. It then refers to a trust established by Lord Lambton, to which he transferred his shares in Casuarina Limited, and the sale by Lord Lambton to that company of the remaining land at Cetinale. It states that the current trustee of the settlement is based in New Zealand.
Paragraphs 15–17 state various propositions of English Law. Paragraph 15 is as follows:
"15. English choice of law rules for succession apply only to those assets which fall within the deceased's estate. As a matter of English private international law, the only assets which fall within a deceased's estate are those of which the deceased stood possessed at the time of his death. Assets disposed of by the deceased prior to his death do not form part of his estate upon death. The lex successionis is irrelevant to this question."
Paragraph 18 refutes the claims of the defendants as follows:
"18. Further, and in the premises, under English law;
i. Lord Lambton had testamentary freedom and the Defendants have no rights to a share of the deceased's estate and no claim in respect of assets which he disposed of during his lifetime.
ii. The Defendants have no claim for discretionary relief pursuant to the Inheritance (Provision for Family and Dependants) Act 1975, section 1, since the deceased did not die domiciled in England and Wales. No such claim has, in any event, been brought within the limitation period.
iii. Accordingly, the Defendants have no entitlement, right or claim, nor can any discretion be exercised in their favour, in respect of any part of Lord Lambton's estate or any assets disposed of during Lord Lambton's lifetime."
The only substantive relief claimed in the prayer to the Particulars of Claim comprises the following declarations, each of which is cast in whole or in part in a negative form:
"(1) A declaration that the assets disposed of by Lord Lambton during his lifetime do not form part of his estate on death and that their value is not to be taken into account for any purpose in determining the value of the estate upon Lord Lambton's death.
(2) A declaration that the Claimant is under no obligation to make restitution of property or to recompense any of the Defendants in respect of property transferred by Lord Lambton during his lifetime.
(3) A declaration that, insofar as any foreign law refers questions of succession to English law, English law does not refer back to that foreign law, or to any other foreign law, in respect of assets that were disposed of during Lord Lambton's lifetime.
(4) A declaration that the Defendants have no succession rights as a matter of English law and no claim pursuant to the Inheritance (Provision for Family and Dependants) Act 1975 (which claim is, in any event, time barred).
(5) A declaration that succession to immovable property located in England is governed by English domestic law; and that any such property given away by the deceased during his life does not form part of the estate of the deceased on death for any purpose."
During the course of the hearing of the application Mr Dominic Dowley QC, for the claimant, applied to amend the Particulars of Claim. The amendments were opposed by Mr Alexander Layton QC, for the defendants. I said that I would decide whether or not to allow the amendments when delivering judgment on the application.
The proposed amendments include the following. There is a new paragraph 9A as follows:
"9A. In proceedings against the Claimant (among others) which the Defendants commenced in the Tribunal of Siena in Italy on 6 June 2013 (following the commencement of the present proceedings), the Defendants assert that the disposals of assets by Lord Lambton during his lifetime were shams or otherwise invalid and...
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