Trevor Montrose Gaskin v Chorus Law Ltd
| Jurisdiction | England & Wales |
| Judge | Master Clark |
| Judgment Date | 21 March 2019 |
| Neutral Citation | [2019] EWHC 616 (Ch) |
| Docket Number | Case No: HC-2016-000828 |
| Court | Chancery Division |
| Date | 21 March 2019 |
[2019] EWHC 616 (Ch)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
PROPERTY TRUSTS AND PROBATE LIST (ChD)
Royal Courts of Justice, Rolls Building
Fetter Lane, London, EC4A 1NL
Master Clark
Case No: HC-2016-000828
Michael Ashdown (instructed by LK Solicitors Ltd) for the Claimant
Sam Chandler (instructed by Shulmans LLP) for the First Defendant
Mark Baxter (instructed by Listenlegal) for the Second Defendant
Hearing date: 30 January 2019
Approved Judgment
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.
This judgment determines the incidence of costs as between the parties in this claim under s.50 of the Administration of Justice Act 1985, which, as will be seen, was ultimately dismissed in unusual circumstances. Regrettably, though sadly not usually, the parties' combined costs of the claim (which exceed £180,000) represent just under half of the value of the estate to which the claim relates.
Background
On 22 June 2012, Eileen Ianthe Gaskin (“the mother”) died aged 87, apparently intestate. She had three children: Trevor Montrose Gaskin, the claimant (“C”), Marquita Murphy, the second defendant (“D2”) and Monica Scarlett. Ms Scarlett lives in Barbados. She took very little part in the events giving rise to the claim, and is not a party to it.
The main asset of the deceased's estate was her property 102 Butler Road, Harrow, Middlesex HA1 4DT (“the Property”), valued as at the date of her death at £320,000, together with about £70,000 in bank and building society accounts and shares.
D2's evidence is that her mother had told her that she had left a will, but that, after her death, D2 was unable to find a will. C's position as to the steps taken to search for a will is not set out in a witness statement. However, his solicitors' letter dated 3 August 2016 and email dated 18 November 2016 state that immediately after the mother's death, all three siblings went through the papers in a metal box in which the mother kept all her personal papers, together with further documents in her wardrobe. These included (according to C) several purported wills or copy wills, but the three siblings concluded that none of these were valid wills; and, therefore, that the mother had died without leaving a valid will.
Initially, D2 investigated obtaining a grant to and administering the mother's estate without professional help. C suggested using a solicitor, but D2 was unwilling to agree to this because of the cost. Eventually, in early 2013 they agreed to instruct the first defendant, Chorus Law Limited (“D1”), a probate company, who was recommended to them by the mother's bank, Barclays Bank.
On 7 February 2013, C and D2 met with a representative of D1 at the Property, and C signed a form confirming to D1 that he wished D2 to be its primary contact. C also wrote a letter to Ms Scarlett (which D2 retyped because it contained spelling errors), setting out that they had appointed a company to deal with the mother's estate, and that
“I have already singed ( sic) that our sister Marquita be appointed to carry out the duties as executor.”
On 26 March 2013 D2 executed power of attorney in favour of D1. Six months later, on 19 September 2013, D1 obtained (under r.31 of the Non-Contentious Probate Rules 1987) a grant of letters of administration for the use and benefit of D2.
On 25 November 2013, D1 wrote to C enclosing copy letters dated 27 February 2013 in which it had asked him to send it his original birth certificate and confirmation of any lifetime gifts. He replied on 27 November 2013, saying that this was the first time he had heard from them.
D1's primary method of communication with D2 was by telephone. Its telephone call log shows that D2 told it on several occasions that she was not living at the Property; and that she was clearing it for sale. This continued until 8 April 2015, when C's solicitors first wrote to D1 complaining that D2 was living at the Property, and that it had not been sold. The letter asked what steps were being taken to secure an occupation rent from D2; and for evidence that the Property was being marketed. D2 replied with a holding response in its letter dated 24 April 2015, enclosing the grant and HMRC's calculation of inheritance tax.
D1 then contacted D2 on 27 April 2015 to ask again about clearing the Property and whether she was living there. Again, D2 told them that she was trying to clear it and that she was not living there. No further progress was made in the administration of the estate.
C's solicitors also wrote to D2 on 28 April 2015, enclosing their letter dated 8 April 2015 to D1, and its response dated 24 April 2015. The letter invited D2 to make contact. No reply was received to it.
D1 responded substantively to C's solicitors' letter of 8 April 2015 by a letter dated 8 May 2015. This set out that it had been told by D2 that she was clearing the Property in preparation for marketing and that she was not living there; and that therefore no steps had been taken regarding rent. It concluded:
“We understand your client's concerns with regard to the length of time the administration is taking. We are endeavouring to conclude this as quickly as possible, but we are reliant on the family to take action to do this.”
On 8 January 2016, C's solicitors wrote a letter before claim to D1. This set out that nothing had been done to deal with the Property, no interim distribution had been made and that D2 was living at the Property. It asserted that the Property could have been transferred into the names of the three beneficiaries. It concluded:
“In these circumstances, we are instructed to put you on notice that unless, within 28 days of the date of this letter, you confirm that you are taking immediate steps to transfer the property into the names of the beneficiaries, to put the same on the open market for sale with vacant possession and an interim payment is made to the beneficiaries then our client will apply to have you and/or Ms Murphy removed as personal representatives and for him to be substituted in your place.”
On the same date, 8 January 2016, C's solicitors also wrote to D2. The letter stated on its face that it enclosed the letter of the same date to D1. D2's counsel informed me on instructions that it was not enclosed, but did not suggest that D2 could not have requested the missing enclosure. The letter concludes:
“our client has now instructed us to commence legal proceedings against both you and [D1] to have you removed as personal representatives your mother's estate unless steps are taken to progress the winding up and distribution of your mother's estate.
Please do not ignore this letter. This will be the last communication with you before we issue court proceedings and, in that eventuality, our client will also be seeking an order for costs against you.”
Neither defendant replied to these letters.
On 14 March 2016, C issued his claim form. Confusingly, and contrary to CPR 64.3 (which requires a claim for removal of personal representatives to be made by Part 8 claim), a probate claim form (N2) was used. The claim form sought the removal of both defendants as personal representatives, and the defendant's substitution in their place. The particulars of claim set out that:
(1) the Property had not been sold or put on the market for sale;
( 2) D2 and her adult daughter were occupying it as their main residence;
(3) no interim payment had been made to C or Ms Scarlett;
( 4) D1 had failed to deal with the estate in a proper and timeous fashion;
The relief sought is not set out in a prayer, but is stated to be:
(1) an order for C's substitution as personal representative in place of the defendants;
(2) a declaration that D2 “has occupied the Property for her and her family's exclusive use and benefit since the date of death of [the mother] and that she is accordingly indebted to the estate of [the mother] for a market rent which could have been obtained on the Property since the date of [the mother]'s death to the date of the court's order.”
The claim was supported by C's consent to act and a letter from his GP stating that he was physically and mentally able to take on duties for his late mother's estate. This was apparently a misconceived attempt to provide evidence of fitness to act in accordance with CPR PD57A, para 13.2.
On 21 March 2016, the claim form and particulars of claim were served, together with a witness statement by C dated 14 March 2016.
On 7 April 2016, D1 wrote to D2 informing her that in the light of the claim, they were no longer able to act and had advised C that they would consent to an application revoking their appointment. They also stated that they were willing to hold the estate funds held by them until a new personal representative had been appointed.
In fact, on 8 April 2016, D1's solicitors wrote to C's solicitors “Without Prejudice Save as to Costs”. In that letter D1 offered to stand down as administrator and invited C's solicitors to send a consent order for signature. The offer was not however, unconditional. It required:
(1) payment of D1's fees from the estate funds;
(2) no order as to costs.
This offer was not accepted and lapsed.
In D1's Defence dated 18 May 2016, it:
(1) admitted that the Property had not been sold or put on the open market;
(2) admitted that no interim payments had been made to C or Ms Scarlett;
(3) did not admit that D2 and her family had occupied the Property, and referred to unanswered correspondence to her asking her whether she was in occupation;
(4) agreed to be...
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