Elleonerd Dawn Millard, née Bosworth (former wife of Michael Royston Bosworth) v Annette Stone, née Cox (wife of Timothy Stone)

• Jurisdiction: Jersey
• Court: Royal Court
• Judge: Matthew John Thompson
• Judgment Date: 30 November 2022
• Neutral Citation: [2022] JRC 262

Between

Elleonerd Dawn Millard, née Bosworth (former wife of Michael Royston Bosworth)

Plaintiff

and

Annette Stone, née Cox (wife of Timothy Stone)

First Defendant

Timothy Stone

Second Defendant

Marcus Kraig Stone

Third Defendant

Bois Executors Limited

Fourth Defendant

[2022] JRC 262

Before:

Advocate Matthew John Thompson, Master of the Royal Court.

ROYAL COURT

(Samedi)

Estate — application by the plaintiff to amend her order of justice

Authorities

Millard v Cox and Ors [2022] JRC 023.

Trico v Buckingham [2019] JRC 163.

Trico v Buckingham [2019] JRC 095.

Patel & Ors v JTC Trust Company Limited & Ors [2022] JRC 150.

Royal Court Rules 2004.

Roberts v Gill & Co [2010] UKSC 22.

Hayim Citibank NA [1987] AC 730.

Basnage, Commentaires sur law Coutume de Normandie 3rd Edition.

De La Haye v Walton [2013] JRC 021.

Advocate P.C. Sinel for the Plaintiff.

Advocate M. P. Boothman for the First and Second Defendants.

Advocate H. Sharp, K.C. for the Third Defendant.

Advocate S. J. Young as a Director of the Fourth Defendant

CONTENTS

		Paras
1.	Introduction	1
2.	Background	2–12
3.	The legal principles on an application to amend	13–18
4.	Amendments relating to the claims to set aside the 2017 Wills and the 2015 Wills	19–20
5.	Claims requiring an account	21–67
6.	A claim for Rapport	68–73
7.	Other Miscellaneous amendments	74–76
8.	Any other issues	77
9.	Allegations of dishonesty	78
10.	The prayer	79
11.	Postscript	80

THE MASTER:

Introduction

1 This judgment contains my decision in relation to an application by the plaintiff to amend her order of justice.

Background

2 The background to the present proceedings is set out in my previous judgment in this matter reported at Millard v Cox and Ors [2022] JRC 023 dated 27 ^th January 2022. I adopt paragraphs 2 to 11 of that judgment which sets out the issues currently between the parties.

3 My previous judgment contained my reasons for refusing various applications for specific discovery made by the plaintiff (who was then represented by Advocate A. P. Begg) and ordering general discovery.

4 That same judgment recorded the procedural history up to January 2022. The main part of the general discussion related to a discovery order I had made on 25 ^th August 2021 which required the parties to make discovery on a number of documents including “a. any documents relevant to the Deceased's instructions and capacity to make Wills in February 2015 and July 2017…” I have referred to this because the pleadings as presently drafted do not refer to the 2015 Will. Yet, if the Wills made in 2017 are set aside as the plaintiff alleges, then in relation to the moveable estate of the deceased the 2015 Will is likely to take effect unless that too is found to remain revoked. One of the amendments sought makes that application.

5 As a result of my previous judgment on 5 ^th January 2022 I made a general discovery order which included the following order at paragraph 5 as follows:-

“5. the Plaintiff and the First to Third Defendants shall make discovery of all relevant documents to each other by provision of a list of documents verified by affidavit by 5:00 p.m. Friday, 11th February 2022, such general discovery to include:-

a. all documents sufficient to provide a full explanation of the terms of the sale of 3 Parcq du Rivage and the purchase of Les Quatre Saisons;

b. the Third Defendant's dealing with the affairs of Annie May Bosworth (née Goulding) (“the deceased”) from 2007 onwards; and

c. any records held in respect of Qu-Vib Limited.”

6 Subsequent to this order the parties have all sworn affidavits of discovery.

7 In the same Act of Court I also ordered discovery to take place by 11 ^th February 2022, and allowed the plaintiff until 4 ^th March 2022 to file a draft amended order of justice. These time limits were subsequently extended by Acts of Court dated 10 ^th March 2022 and 27 ^th April 2022.

8 In respect of the Act of Court of 27 ^th April 2022 I also directed the plaintiff to arrange a date fix appointment in respect of any specific discovery application she wished to bring.

9 The summons currently issued by the plaintiff seeking to amend her order of justice also contains applications for specific discovery. Ultimately, I decided to proceed with the application to amend first before dealing with any specific discovery issues.

10 In relation to the amendments the plaintiff now seeks, four different versions of the draft amended order of justice have been provided by the plaintiff to the defendants. While the present application mainly focuses on the final version provided, I have referred to previous versions because criticisms were made by the first, second and third defendants of allegations made in earlier drafts which were then not pursued.

11 In relation to the present application, it is also right to note that in response to the second amended draft produced by the plaintiff, the third defendant swore an affidavit in response to the plaintiff's application to amend as formulated in the draft supplied at that time. I refer to this affidavit later in this decision.

12 The draft amended order of justice identities specific discovery documents sought as a result of the proposed amendments runs to some 59 pages. The original order of justice was 31 pages in length. Rather than set out the amendments in full, I have endeavoured to categorise them as follows:-

• (i) Amendments relating to the challenges to set aside the 2017 Wills and extending the challenges to the 2015 Will;

• (ii) A claim requiring the first, second and third defendants to account for their dealings with the assets of the deceased during her lifetime. Insofar as the amendments seek to require the first, second and third defendants to account for their dealings with the assets of the deceased, the pleading also seeks to bring a derivative claim on behalf of the deceased's estate;

• (iii) Amendments relating to the plaintiff's claim requiring the defendants in particular the third defendant to account for lifetime gifts by way of application of the doctrine of “Rapport a la Masse”;

• (iv) minor amendments relating to existing factual matters already pleaded; and

• (v) amendments to the relief sought.

The legal principles on an application to amend

13 There was no dispute between the parties on the applicable legal principles on an application to amend. I considered these in Trico v Buckingham [2019] JRC163 at paragraphs 35 to 38 as follows:-

“35. In respect of the Jersey position, I was referred to MacFirbisigh v C.I. Trustees an Executors Limited and Others [2014] (1) JLR 244 where I summarised the applicable legal principles on an application to amend at paragraphs 27 to 30 including citing the decision of Cunningham v Cunningham [2009] JLR 227. In summary, the principle was covered by paragraph 21 of Cunningham as follows:-

“21 Where there is a late application for an amendment to the order of justice (or to the answer or reply) the Jersey courts have to strike a balance which is primarily between the parties to the instant case. The burden on the applicant is a heavy one to show, for example, (1) why the matters now sought to be pleaded were not pleaded before; (2) what is the strength of the new case; (3) why an adjournment should be granted, if one is necessary; (4) how any adverse effects on the other party including the effects of any adjournment, any additional discovery, witness statements or experts reports, or other preparation for trial can be remedied; and (5) why the balance of justice should come down in favour of the party seeking to change its case at a late stage of the proceedings .

36. My decision in MacFirbisigh however was prior to the introduction of the overriding objective into the Royal Court Rules in June 2017. The current approach in England to late applications to amend therefore goes further than the approach in MacFirbisigh and other previous decisions on applications to amend. In Quah Su-Ling v Goldman Sachs International [2015] EWHC 759 (Comm), Ms Justice Carr DBE summarised these principles at paragraphs 36 to 38 as follows:-

“36. An application to amend will be refused if it is clear that the proposed amendment has no real prospect of success. The test to be applied is the same as that for summary judgment under CPR Part 24. Thus, the applicant has to have a case which is better than merely arguable. The court may reject an amendment seeking to raise a version of the facts of the case, which is inherently implausible, self-contradictory or is not supported by contemporaneous documentation. (Underlining Added)

37. Beyond that, the relevant principles applying to very late applications to amend are well known. I have been referred to a number of authorities : Swain-Mason v Mills & Reeve [2011] 1 WLR 2735 (at paras. 69 to 72, 85 and 106); Worldwide Corporation Ltd v GPT Ltd [CA Transcript No 1835] 2 December 1988; Hague Plant Limited v Hague [2014] EWCA Civ 1609 (at paras. 27 to 33); Dany Lions Ltd v Bristol Cars Ltd [2014] EWHC 928 (QB) (at paras. 4 to 7 and 29); Durley House Ltd v Firmdale Hotels plc [2014] EWHC 2608 (Ch) (at paras. 31 and 32); Mitchell v News Group Newspapers [2013] EWCA Civ 1537.

38. Drawing these authorities together, the relevant principles can be stated simply as follows:

a) whether to allow an amendment is a matter for the discretion of the court. In exercising that discretion, the overriding objective is of the greatest importance. Applications always involve the court striking a balance between injustice to the applicant if the amendment is refused, and injustice to the opposing party and other litigants in general, if the amendment is permitted;

b) where a very late application to amend is made the correct...