A v H

• Jurisdiction: Jersey
• Court: Royal Court
• Judge: Jurats Crill,Sir Michael Birt
• Judgment Date: 07 February 2018
• Neutral Citation: [2018] JRC 31
• Date: 07 February 2018

Between

A

Plaintiffs

K

Second Plaintiff

L

Third Plaintiff

and

H

First Defendant

John Bisson and others (practicing under the name and style of Appleby)

Second Defendant

[2018] JRC 31

Before:

Sir Michael Birt, Commissioner, and Jurats Crill and Sparrow

Royal Court

(Samedi)

Estate — appeal against the decisions of the Master in his judgments dated 15th June and 7th July 2016.

Authorities

In the matter of II [2016] JRC 106 .

In the matter of II [2016] JRC 116 .

White v Jones [1995] 2 AC 207 .

Clerk and Lindsell on Torts, (21st edition)

Flenley and Leech, Solicitors' Negligence and Liability (Second Edition).

Three Rivers DC v Bank of England (No. 3) [2003] 2 AC 1 .

Makarenko v CIS Emerging Growth Limited [2001] JLR 348

The First Plaintiff appeared in person.

The Second Plaintiff appeared in person.

The Third Plaintiff did not appear.

Advocate O. A. Blakeley for the First Defendant.

Advocate D. R. Wilson for the Second Defendant.

THE COMMISSIONER:

1 On 15 ^th June, 2016, In the matter of II [2016] JRC 106 (“the June judgment”) the Master struck out all of the claims in the Order of Justice of the second and third plaintiffs with the exception of that pleaded at paragraph 21 of the Order of Justice.

2 On 7 ^th July, 2016, In the matter of II [2016] JRC 116 (“the July judgment”) the Master struck out all the allegations of fraud in the Order of Justice against the first defendant and the second defendant (“Appleby”).

3 The second and third plaintiffs (“the sons”) appeal against the June judgment and the first plaintiff appeals against the July judgment.

4 The test on an appeal against a decision of the Master in procedural matters is well established. This Court hears the matter afresh and reaches its own decision whilst paying due regard to the decision of the Master.

Background

5 As this was a strike-out application, the factual background is to be taken from the Order of Justice. It is summarised in the June judgment to which recourse may be had if necessary.

6 The first defendant and the first plaintiff are brother and sister. Their mother (“the deceased”) made a will of immovable property in 1975 which left such property to the first plaintiff and the first defendant (as the deceased's only two children) in equal shares with gifts over to their respective children in the event of either of them predeceasing the deceased.

7 In April 2008, the deceased made new wills of movable and immovable estate (“the 2008 wills”). These left her entire estate to the first defendant. The wills went on to provide that should the first defendant predecease the deceased, the relevant estate should be left equally to the deceased's four grandchildren, namely the sons and the two children of the first defendant. Thus nothing was left to the first plaintiff in the 2008 wills.

8 It is alleged that this is because the first plaintiff was at the time engaged in acrimonious divorce proceedings with her then husband and the deceased was anxious to ensure that, should she die before the divorce was finalised, no part of her estate should fall into and form part of the matrimonial assets such that the former husband might become entitled to a share.

9 According to paragraph 51 of the July judgment, the first plaintiff told the Master that she was aware of the scheme because she had been told of a similar scheme by her ex-husband (in relation to the ex-husband's father) and had discussed it with the first defendant and the deceased, leading to the deceased executing the 2008 wills. When the first plaintiff became aware of the 2008 wills, she was not surprised by their content as it was what she was expecting.

10 Key allegations as to assurances given by the first defendant are set out at paragraphs 15 and 20 of the Order of Justice as follows:-

“15. THAT the First Defendant repeatedly assured the Deceased both before and after the execution of the 2008 Wills, that he would divide the Estate equally with the First Plaintiff on the death of the Deceased regardless of the Deceased's testamentary dispositions provided that the First Plaintiff was then divorced, with the proviso that if the First Plaintiff was not divorced at the time of the Deceased's death, he would hold the First Plaintiff's half share of the Estate on trust for the First Plaintiff.

…

20. THAT since the death of the Deceased, the First Defendant has repeatedly reaffirmed to the Plaintiffs and others, some of whom have as a result extended credit to the First Plaintiff, that he would honour the Deceased's wishes to provide for him and the First Plaintiff equally….”

11 The Order of Justice goes on to make various allegations against the first defendant in relation to his alleged conduct prior to the deceased's death and thereafter. The prayer of the Order of Justice claims that the first plaintiff should receive half the value of the deceased's immovable property together with her legitime share of the movable estate. There is also a claim for damages for all the plaintiffs for the economic loss and personal injury sustained as a result of the conduct of the first defendant and/or Appleby, the allegation against Appleby being essentially one of failing to advise the deceased properly or at all.

12 The Order of Justice was not drawn up by an advocate and is sprinkled with suggestions of fraud. On 4 ^th February, 2015, the Master directed the plaintiffs to specify:-

• (i) all grounds relied upon in respect of allegations of fraudulent misrepresentation against the first defendant;

• (ii) whether the plaintiffs allege fraud or dishonesty by the second defendant; and

• (iii) if fraud or dishonesty is alleged against the second defendant the grounds relied upon with sufficient details so that the second defendant understands the case against it.

13 A document purporting to comply with that requirement (the particulars of fraud) was filed by the plaintiffs on 27 ^th April, 2015. The particulars of fraud is a somewhat discursive document and it was summarised at paragraph 31 of the skeleton argument filed by the first defendant for the hearing before the Master in the following terms:-

“The attempt of the Plaintiffs to file a further pleading in order to clarify the claims has been completely unsuccessful. That further pleading appears more of a narrative, akin to an affidavit, and does little more than repeat the vast majority of the claims in a different way and label more of them as fraud.”

14 It is not easy to extract from the Order of Justice and the particulars of fraud the exact nature of the causes of action relied upon by the plaintiffs but it seems to have been accepted before the Master that the following causes of action are arguable:-

• (i) Lack of capacity of the deceased at the time she made the 2008 wills.

• (ii) Duress or undue influence of the first defendant over his mother.

• (iii) A breach of the legitime rights of the first plaintiff.

• (iv) Mismanagement of the estate of the deceased by the first defendant as executor.

• (v) Claims in breach of contract and/or estoppel and/or unjust enrichment based upon the alleged assurances of the first defendant that he would divide the estate equally with the first plaintiff regardless of the testamentary dispositions and his failure to adhere to these assurances.

15 The Order of Justice was issued as long ago as March 2012 and there has been a lamentable lack of progress in the proceedings, which have been beset by adjournments and procedural wrangling. The history is set out in some detail in both the June and July judgments when the Master explained why he was refusing on each occasion to accede to the application by the relevant plaintiff to adjourn yet again the determination of the summonses issued by the defendants as long ago as September 2015. We do not propose to repeat that history in this judgment but would refer to paragraphs 5–31 of the June judgment and 6–23 of the July judgment.

16 There has also unfortunately been delay in the hearing of this appeal. It was originally fixed for hearing in November 2016 before a court presided over by the Deputy Bailiff but unfortunately he fell ill and the matter had to be adjourned. It was then fixed for 2 ^nd May 2017. On that occasion I was reluctantly persuaded by the plaintiffs that the matter should be adjourned because of an apparent misunderstanding on their part as to whether the appeal was actually to be heard and a concern as to whether they had had sufficient time to respond to the bundle filed by the defendants. However I explained that the grounds of appeal against both the June judgment and the July judgment appeared to focus exclusively on the failure of the Master to adjourn both hearings and did not engage with the merits of the Master's decision. I directed that they should file amended grounds of appeal so as to state exactly where and why they considered the Master had been wrong.

17 That direction has not been entirely successful. The only amendment made by the first plaintiff in respect of her appeal was to add two new grounds of appeal as follows:-

“5. The First Plaintiff wishes to appeal the decision of the Master and have it overturned in its entirety on the basis that the Master's decision handed down on 7th July 2016 was wrong and unjust based on mis-directions and/or erroneous findings as to fact(s), the law, the wrongful exercise of the court's discretion and/or serious procedural irregularity in the proceedings.

6. Further since the hearing on 6th June 2016 there have been further developments which the First Plaintiff will wish to see brought to the attention of the court.”

18 The amendment made by the sons was simply to insert at paragraph 9 of the grounds of appeal a reference to the fact the Master had unjustly exercised the Court's discretion against the plaintiffs and that there had been...