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You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Hewson v Wells & Ors [2020] EWHC 2722 (Ch) (26 August 2020) URL: https://www.bailii.org/ew/cases/EWHC/Ch/2020/2722.html Cite as: [2020] EWHC 2722 (Ch) |
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BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
PROPERTY TRUSTS AND PROBATE LIST (ChD)
Rolls Building Fetter Lane London EC4A 1NL |
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B e f o r e :
____________________
KAREN HEWSON | Claimant | |
and | ||
(1) COLIN WELLS | ||
(2) BRIAN WELLS | ||
(3) ANTHONY WELLS | ||
(4) PATRICIA WELLS | ||
(5) JEFFREY COHEN | Defendants |
____________________
291-299 Borough High Street, London SE1 1JG
Tel: 020 7269 0370
legal@ubiqus.com
KIRA KING (instructed by Morgan Rose, Solicitors) appeared on behalf of the First to Third Defendants
____________________
Crown Copyright ©
MASTER CLARK:
Parties and background to the claim
The Deed
Chronology
"Please provide a copy of any Trust Deed if one exists and copies of all other relevant documents relating to this proposed trust", and
"Please assist by providing any documents which show that either your brother or you held a beneficial entitlement to the property Brickfield Cottage".
It continued,
"we do not want to issue without knowing your position and without trying to attempt a reasonable settlement outside court. You are invited to comply with the protocol to provide all documents evidencing any trusts on Brickfield Cottage, to reply substantively with all documents showing how Brickfield Cottage was purchased….
If you do not assist and we have to issue to get these documents then we will rely on the provision of CPR 44 on costs and we will say to the court that we had to issue to find out the strength of your case as you would not cooperate with reasonable requests made pursuant to the protocol".
The letter also asked for the address of the third defendant, Anthony Wells.
"our client is not aware of a will"
"our client has done nothing in relation to the administration of his father's estate"
"our client has no papers"
"My client is the legal owner of Brickfield Cottage along with his brothers. From what I have been able to discern, your client has no interest".
(1) a claim under the Inheritance (Provision for Family and Dependants) Act 1975;
(2) a claim to a beneficial interest in the Property on the part of the claimant;
(3) a claim under what is referred to as proprietary/promissory estoppel;
(4) a claim to a right to occupy the Property under a missing deed or declaration of trust;
(5) claims to declarations of ownership by the deceased of the Property, and of his carpet business.
Discontinuance, the relevant legal principles.
'Unless the court orders otherwise, a claimant who discontinues is liable for the costs which a defendant against whom the claimant discontinues incurred on or before the date on which notice of discontinuance was served on the defendant'.
(1) conduct before as well as during the proceedings and in particular the extent to which the parties followed the practice direction on pre-action conduct or any relevant pre-action protocol;
(2) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue; and
(3) the manner in which a party has pursued or defended its case or particular allegation or issue.
"(1) When a claimant discontinues the proceedings, there is a presumption by reason of CPR 38.6 that the defendant should recover his costs; the burden is on the claimant to show a good reason for departing from that position;
(2) the fact that the claimant would or might well have succeeded at trial is not itself a sufficient reason for doing so;
(3) however, if it is plain that the claim would have failed, that is an additional factor in favour of applying the presumption;
(4) the mere fact that the claimant's decision to discontinue may have been motivated by a practical, pragmatic, or financial reasons, as opposed to a lack of confidence in the merits of the case will not suffice to displace the presumption;
(5) if the claimant is to succeed in displacing the presumption, he would usually need to show a change of circumstances to which he himself has not contributed;
(6) however, no change in circumstances is likely to suffice unless it has been brought about by some form of unreasonable conduct on the part of the defendant which in all the circumstances provides a good reason for departing from the rule'.
"[it] is clear therefore from the terms of the rule itself and from the authorities that a claimant who seeks to persuade the court to depart from the normal position must provide cogent reasons for doing so and is unlikely to satisfy that requirement save in unusual circumstances."
"the reasonable perception by the claimants that their property was at risk of collapsing, coupled with the failure of the defendant to respond to pre-action correspondence and his subsequent conduct in giving the claimants in substance what they had requested'. [40]
The claimants were awarded their costs up to service of the defence and thereafter there was no order as to costs.
Effect of the notice of discontinuance and the application to disapply the default rule as to costs.
Disapplication of the costs rule on discontinuance
"an order that the defendants produce any trust deed, declaration of trust, deed or will dealing with the beneficial interest held by the claimant and/or by [the deceased] in [the Property] to the claimant and to the court."
'No grant of probate has been taken out by the defendants and the claimant seeks directions from the court pursuant to CPR 57.16.3(a) as to who is to take out a grant of probate or letters of administration'.
The defendants' counsel submitted that this part of the claim was bound to fail, because the claimant had not satisfied the evidential requirements of CPR 57.16.3(a). However, these evidential requirements could have been met by additional evidence, and this part of the claim was not bound to fail. Although it is also a minor part of the claim, in my judgment, the claimant was plainly entitled to a direction under CPR 57.16.3(a) as to the representation of the estate in the claim. For reasons that are unclear to me, she took the different route of seeking the appointment of an independent administrator.
32. As to the claims to a beneficial interest and under proprietary/promissory estoppel (and the consequential relief), the defendants' counsel submitted that it was plain that they would fail. She relied upon the presumption that the beneficial interest follows the legal interest in the absence of a contrary intention, see Stack v Dowden [2007] UKHL 17, [2007] 2 AC 432 at [56] and Whitlock v Moree [2017] UKPC 44, 20 ITELR 658 at [25].
Change in circumstances
Unreasonable behaviour by the defendants
Other factors.
Conclusion