Towns v Pullbrook
| Jurisdiction | England & Wales |
| Judge | Richard M Sheldon QC,Richard Sheldon QC (sitting as a Deputy Judge of the High Court) |
| Judgment Date | 08 April 2009 |
| Neutral Citation | [2009] EWHC 782 (Ch) |
| Court | Chancery Division |
| Date | 08 April 2009 |
| Docket Number | Case No: HC07C02695 |
[2009] EWHC 782 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Richard Sheldon QC (Sitting as a Deputy Judge of the High Court)
Case No: HC07C02695
Tracey Angus (instructed by Payne Hicks Beach) for the Claimants
Richard Henry Pulbrook in person
Hearing dates: 18-20 February 2009
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.
April 2009
Richard Sheldon QC (sitting as a Deputy Judge of the High Court)Introduction
This is the trial of claims originally brought by Arthur Ronald Towns (" Mr Towns") for repayment of sums totalling approximately £127,000 drawn from a joint account in the names of Mr Towns and his wife Edith Anne Towns (" Mrs Towns") at the Moorgate Branch of Barclays Bank, account number 30930695 (" the Joint Account"). The claims for repayments are made against the First Defendant, Richard Henry Pulbrook (" Henry Pulbrook"), who was given a mandate to draw funds from the Joint Account, and who is alleged to have withdrawn these sums in breach of fiduciary duty for his own benefit or for the joint benefit of himself and the Second Defendant, Dr Roger Martin Pulbrook (" Dr Pulbrook").
These proceedings were commenced on 5 October 2007. Mr Towns died on 3 June 2008, and the current Claimants were substituted as such in their capacity as executors of Mr Towns' estate on 3 September 2008.
The claims originally made in these proceedings included a full account of Henry Pulbrook's dealings with the Joint Account as well as an account of his dealings with the assets in the estate of Mrs Towns since the date of her death on 8 December 2005. By the time of the trial, and as a result of disclosure made and accounting documentation and explanations provided by Henry Pulbrook, the claims for full accounts were not pursued, and the number of payments in respect of which claims were being made was reduced to seven payments made out of the Joint Account.
The claims for repayment pursued at trial in respect of the seven sums drawn from the Joint Account may be broken down into three categories, which I here summarise as follows:
(i) £54,000 paid on 28 February 2007 and £12,000 paid on 22 March 2007, both to a "Legal Fees Account" (referred to below) and then applied in payment of the legal fees of Farrer & Co. It is common ground that these two payments were paid out of sums in the Joint Account out of monies belonging to Mr Towns. Henry Pulbrook maintains that he was entitled to make these payments by reason of a deed of indemnity in favour of himself and Dr Pulbrook which is signed by Mr Towns and dated 6 March 2006 (" the March 2006 Deed"). The Claimants deny that Henry Pulbrook is entitled to rely on the March 2006 Deed and seek a declaration that it is void (on the grounds of non est factum) or voidable (on the grounds of undue influence). I shall refer to these two payments as " Mr Towns' Indemnity Payments".
(ii) £2,173.75 and £7,665.41 paid on 7 August 2006 and a sum of £48,355.85 out of a payment of £65,277.39 made out of the Joint Account on 6 July 2006. These sums were also ultimately applied to pay the legal fees of Farrer & Co. Henry Pulbrook claims that these sums were paid out of monies in the Joint Account belonging to Mrs Towns' estate and were properly applied to discharge the legal fees of Farrer & Co by virtue of a letter of indemnity provided by Mrs Towns in favour of himself and Dr Pulbrook which is signed by Mrs Towns and dated 6 November 2005 (" the November 2005 Indemnity Letter"). The Claimants assert that these sums were paid out of monies in the Joint Account belonging to Mr Towns (in which case the same issues arise as in respect of Mr Towns' Indemnity Payments), alternatively that the November 2005 Indemnity Letter did not create a liability of Mrs Towns' estate as it was unenforceable as having been given for no consideration. I shall refer to these three sums as " Mrs Towns' Indemnity Payments".
(iii) £625 paid on 1 June 2006 and £1,780 paid on 23 November 2006, both to Henry Pulbrook. These are said by the latter to represent his agreed fees for managing the Joint Account and Towns Trust. I shall refer to these two payments as " the Fee Payments".
Henry Pulbrook has also raised issues as to whether Mr Towns had capacity to bring and prosecute the claim.
At the trial, the Claimants were represented by Ms Tracey Angus. I am grateful to her for having produced a detailed chronology which has been of considerable assistance to me in finding my way around the documentation. It is unfortunate that the way this had been reproduced in the trial bundles is far from user friendly.
Henry Pulbrook appeared in person. Dr Pulbrook did not attend the trial, having written to the Claimants' solicitors on 17 November 2008 to say that he made no admission or denial in relation to the claims in these proceedings, that he would not enter a defence and that he would agree to be bound by the Court's final decision. The Claimants do not seek monetary relief against Dr Pulbrook but he was latterly joined as a defendant as he would or might be affected by the declaration being sought by the Claimants in relation to the March 2006 Deed (and, I would add, by my findings in relation to the November 2005 Indemnity Letter).
Before considering in detail the factual and legal issues which I have to decide, it is necessary for me first to describe the witnesses who gave evidence at the trial and then to set out the salient background facts by reference to matters which are not substantially disputed.
The witnesses
For the claimants, I heard evidence from David Lewis Parkhouse (" Mr Parkhouse"), a solicitor and partner in the firm of Lester Aldridge LLP, Stephen Charles King (" Mr King"), a solicitor and partner in Payne Hicks Beach, and Richard Curtis, the First Claimant.
Mr Parkhouse has been a solicitor since 1974 and specialises in probate work, wills and inheritance tax planning and powers of attorney. He takes particular responsibility in his firm for advising the elderly. Mr Parkhouse gave evidence about Mr Towns' mental capacity in the summer of 2007 whilst Mr Towns was his client. Mr Parkhouse was an impressive witness and I have no hesitation in accepting the evidence which he gave.
Mr King acted for the current claimants in connection with claims they made in their capacity as beneficiaries under certain family trusts against Henry Pulbrook in 2005 and 2006 which I describe below. Mr King acted for Mr Towns from about the summer of 2007 in connection with the claims being made in these proceedings and has continued to act for the current claimants. Mr King has given evidence as to the information which was imparted to him by Mr Towns in the course of being instructed to pursue these claims, Mr Towns' capacity to instruct him, and the circumstances in which Mr Towns' witness statement was prepared. I found Mr King to be a reliable witness and I accept the evidence which he gave.
Richard Curtis has clearly had a deep distrust of Henry Pulbrook for most of the period of time which is material to these proceedings and this was reflected in the manner he gave evidence. I therefore exercise caution before accepting his evidence, but with this caveat I found that he was a straightforward witness and I have no reason to doubt that the evidence he gave as to facts which occurred was essentially truthful. In the event, the evidence he gave was not central to the issues I have to decide.
Mr Towns, originally the claimant in these proceedings, was born on 10 July 1921 and died on 3 June 2008, after these proceedings had been commenced. He produced a witness statement on 27 April 2008 which is relied on by the present claimants. There are a number of reasons why I consider that it would be inappropriate to attach significant weight to the matters he refers to. As will appear later, it is clear that Mr Towns' mental condition declined from at least about late 2007 onwards, and it was felt necessary for Richard Curtis to be appointed his litigation friend in March 2008. The evidence given by Mr King as to the circumstances in which the statement was prepared showed that there were matters which Mr Towns could no longer recall at the time he signed the statement since Payne Hicks Beach had first been instructed to pursue the claim - and it was for that reason that Mr King produced a witness statement to fill these gaps. There was, of course, no opportunity for Mr Towns to be cross examined. In the event the evidence given by Mr Towns in his witness statement is only of particular relevance in connection with the plea of non est factum and I consider what weight I should attach to it in that context.
Henry Pulbrook gave evidence on his own behalf but called no other witnesses (although he did rely on a witness statement dated 6 May 2008 produced by Dr Pulbrook). In her closing submissions, Ms Angus described him as intelligent with a plausible and persuasive manner. I agree. As a litigant in person, he has presented his case with commendable skill and in a measured manner. He is a persuasive advocate. I nevertheless take into account that he has little experience of litigation and consider it would be unfair when considering his evidence to place much reliance on his failure to take the steps in the course of litigation which a seasoned litigator would have appropriately taken. It is nevertheless the case that he has failed...
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