Brown v Hudson & Ors

The late Eric Brown (“the Testator”) instructed the firm of Dixon Emberton to draft his will. The partners in that firm were Ann Dixon (“Ms Dixon”) and Mrs Elizabeth Emberton (“Mrs Emberton”). Ms Dixon drafted the Testator’s will dated the 8^th November 1995 (“the Will”). By the Will the Testator appointed the partners in Dixon Emberton to be his executors together with his cousin Horace Forbes (“Mr Forbes”), and after making a specific legacy of a property 326 Green Lanes to his son Christopher, he gave pecuniary legacies totalling £265,000, which included a legacy of £50,000 to another son, the Claimant Owen Brown and he gave the residue of his estate to the Claimant. The Testator died on the 24^th May 1996.

The principal assets owned by the Testator were the properties 326, 328 and 330 Green Lane. At 328 and 330 Green Lane he carried on the business of a hotel under the name of “the Eric Hotel”. By the Will the Testator directed his executors to discontinue and wind up the business and sell the properties.

Probate was granted to Ms Dixon (with power reserved to other executors) on the 12th February 1997. It is not clear whether Mrs Emberton and Mr Forbes ever exercised the power reserved, though orders were later made which proceeded on the basis that they did so. It is however sufficient for the purposes of this judgment to proceed on the basis that Ms Dixon alone obtained probate.

The three Green Lane properties vested in Ms Dixon, Mrs Emberton and Mr Forbes as executors immediate upon the Testator’s death. They wanted possession in order to sell with vacant possession, but the Claimant unlawfully took possession and refused them entry. The executors accordingly had to have recourse to legal proceedings to obtain possession. The proceedings were protracted. On the 26^th April 1996 Ms Dixon obtained from Sir John Wood (sitting as a High Court Judge) an order requiring the Claimant to vacate the three properties, but he refused to comply. On the 29^th July 1996 Garland J made an order for the committal of the Claimant and he was taken to prison by the Deputy Tipstaff. Eventually on the 23^rd January 1997 (with the assistance of the police) the executors obtained possession, and after advertising them for sale on the 25^th November 1997 the executors achieved a sale of 328 and 330 Green Lane for £640,000.

On the 22^nd December 1997 the Claimant was convicted of rape and other serious offences and sentenced to life imprisonment. He continues to be in prison, but under guard attended the hearing before me to present his case in person.

On the 8^th December 1998 the Claimant applied to set aside the grant of probate to Ms Dixon. The Claimant was represented by solicitors at the hearing before District Judge Barry who dismissed the application. There was no appeal.

On the 2^nd August 1999 the Claimant commenced proceedings in the Chancery Division (“the Chancery Action”) against Ms Dixon and Mr Forbes in which he made complaints about the validity of the Will, the administration of the estate and the sale of the Eric Hotel at an undervalue. The Claimant also made allegations of professional negligence against Dixon Emberton, and they accordingly notified their professional indemnity insurers, the Solicitors Indemnity Fund (“the SIF”) the third defendant. SIF instructed the second defendant in the present action, Messrs Merricks, (“Merricks”) to act as solicitors in the Chancery Action on behalf of Dixon Emberton and the SIF, and the day to day conduct of the defence of the Chancery Action was handled by the first defendant, Ms Catherine Hudson (“Ms Hudson”), a partner in Merricks.

On the 23^rd December 1999 Merricks on behalf of Ms Dixon issued an application on behalf of Dixon Emberton to strike out the Chancery Action, save only for paragraph 1 which contains a claim to payment to the Claimant of the legacy of £50,000 and payment of an interim distribution in respect of the Claimant’s entitlement to the residuary estate. The Claimant issued a cross-application for summary judgment. On the 22^nd February 2001 Master Moncaster gave directions for the taking of accounts and inquiries, and these were taken at a hearing before Master Moncaster on the 15^th and 16^th May 2001. By his order made on that date, Master Moncaster directed that a series of costs and expenses incurred by or on behalf of the executors totalling many thousands of pounds should be debited against the Claimant’s legacy and authorised the executors to pay the Claimant’s legal fees up to £5,000 to enable him to be represented in the Chancery Action. Master Moncaster adjourned the executors’ application to strike out to a future appointment. The Claimant complains that there is no available transcript of the Master’s decision. The Master’s order is clear and all that can be required for all practical purposes.

Pursuant to the Master’s order Dixon Emberton on the 29^th May 2001 wrote to the Claimant confirming that the Claimant’s legal expenses could be paid up to £5,000. Further correspondence ensued with various solicitor firms regarding payment of the £5,000. None of them satisfied Dixon Emberton that they were entitled to payment under the terms of the order and neither they nor the Claimant pressed the matter further.

On the 29^th May 2001 the Claimant commenced proceedings in the Queen’s Bench Division (“the QBD Proceedings”) against Dixon Emberton and the SIF. In those proceedings he again challenged the validity of the Will and alleged professional negligence in the administration of the Testator’s estate. The SIF instructed Merricks to act on behalf of Dixon Emberton and the SIF in the QBD Proceedings. On the 20^th September 2001 Master Lesley ordered that the QBD Proceedings be transferred to the Chancery Division and be heard with the Chancery Action.

The partnership of Dixon Emberton was dissolved and Ms Dixon set up her own practice of Dixon & Co. On the 6^th March 2002 the Law Society intervened in this practice and (following a nervous breakdown) on the 30^th May 2002 Ms Dixon was struck off the Roll of Solicitors. She however continued to be the executrix of the estate of the Testator and she retained her former partner Mrs Emberton to act as the estate’s solicitor.

On the 8^th March 2002 the Claimant applied for summary judgment in the QBD Proceedings. In his application he made the groundless and scandalous claim that the hearings before Master Moncaster on the 15^th and 16^th May 2001 and 26^th July 2001 were “illegal because fraud and deception were committed in front of Master Moncaster and he was covering up the case for Ann Dixon”.

The Claimant’s application for summary judgment and appeal against the transfer of the QBD Proceedings to the Chancery Division were heard by Henriques J on the 20^th June 2002. Henriques J dismissed the appeal and stayed the Claimant’s other application. The Claimant’s appeal against the decision of Henriques J was dismissed by the Court of Appeal on the 27^th July 2003.

On the 5^th December 2002 both the Chancery Action and the QBD Proceedings came before Master Moncaster and he struck out the whole of the Chancery Action (except for paragraph 1) and the whole of the QBD Proceedings and ordered the Claimant to pay the costs of both sets of proceedings, and that those costs be deducted from his interest in the Testator’s estate. The Claimant has told me that he wanted to appeal against the Master’s decision and has produced an appellant’s notice, but no appeal was proceeded with.

On the 18^th June 2003 Merricks obtained default costs certificates in the sum of £36,812.20 and £5,780.73. The receipt of these certificates may have prompted the Claimant to commence the present proceedings against Ms Hudson, Merricks and the SIF on the 3^rd March 2005.

The Claimant’s claim form in this action reads as follows:

“The Defendants did conspire together to cover up the case against Ann Dixon and Elizabeth Marion Emberton of Dixon & Emberton Solicitors, who had made themselves illegally the Executors and Trustees for the new Will of Mr Eric Lloyd Brown (deceased) by getting him to sign a new Will when he was under morphine and exorzine in Cromwell Road Hospital; they then sold the Estate illegally for: £415.000. The Defendants also knew that The Law Society had struck Ann Christine Dixon from the Roll of Solicitors and that The Solicitors Indemnity Fund Limited would have to pay out £1700,00 [sic] in damages for Ann Christine Dixon of Dixon & Emberton Solicitors.

And that the Defendants do bear the costs of bringing this action.

Provisional claim for damages of: £1,700,00, [sic] plus interest from 1996”

The Statement of Case pleads: (a) that the Defendants conspired to cover up the case against Dixon Emberton for getting the Testator to sign the Will when he was heavily sedated and unfit to make the Will; for obtaining probate when the Will was not properly attested and executed; for obtaining possession of the Green Lane properties and selling them at an undervalue; (b) that the £5,000 authorised to be paid had not been paid; and (c) that there were irregularities and improprieties in the Chancery Action and the QBD Proceedings.

By the two applications now before me the one by Catherine Hudson and Merricks and the other by the SIF, the Defendants claim the following relief:

At the commencement of the hearing the Claimant applied for an adjournment in order to obtain legal representation. He told me that he could not obtain legal aid because the legal aid authorities took the view that the issues raised had already been decided against him, but he wished to have recourse to the £5,000 provided for in the order of Master Moncaster made on the 15^th and 16^th October 2001. The defendants opposed the application. In my judgment the £5,000 in question was offered to prosecute the Chancery action, not the present proceedings. In my view in any event no adjournment should be granted because the present action is plainly misconceived and an abuse of process for the reasons set out below and an adjournment could serve no useful purpose.

In my view, the present action is an abuse of process because: (1) it is founded on the premise that the Will was invalid, but the court has already upheld the validity of the Will in proceedings commenced by the Claimant and the Claimant has never appealed this decision. Plainly no appeal could any longer be maintained; (2) the complaints relating to the administration of the Testator’s estate have been determined and resolved in favour of the executors and cannot be resurrected in this action; (3) the question of payment of the £5,000 is now academic; and (4) any irregularities or improprieties in the Chancery Action and the QBD Proceedings (and none are established) can only be corrected by appeals in those proceedings, not in this action, and the time for appealing has long expired. Going beyond this, the Claimant has adduced no evidence of conspiracy and indeed the Defendants’ evidence refutes the suggestion.

There is only one possible live issue in the Chancery action, namely the entitlement of the Claimant under the provisions in the Will. It seems to me on the material before me improbable that there is any further sum payable. I have referred to the “set offs” provided for in the orders of Master Moncaster to which I have referred and the assets of the estate have plainly been denuded by the actions taken by the Claimant. Whether or not there is any sum due and whether or not the Claimant has any claim against Ms Dixon is not however a matter that can found any claim against the Defendants.

I accordingly hold that the defendants are entitled to orders striking out the Claimant’s claim or in the alternative summary judgement as claimed and to costs.

In my judgment the Claimant’s claim against the defendants is totally without merit and accordingly under CPR Part 3.4(6)(b) I must consider now whether it is appropriate to make a civil restraint order. The defendants apply for an extended restraint order in the terms of Practice Direction – Civil Restraint Order 3.2, namely that the Claimant be restrained from issuing or making applications in the High Court or County Court concerning any matter involving or relating to or touching upon or leading to the present proceedings without first obtaining the permission of myself or, if I am not available, of another High Court Judge. I have no doubt that I ought to make such an order. The Claimant, as well as needlessly occasioning the proceedings for possession of the Eric Hotel, has commenced four sets of proceedings relating to his father’s estate all of which (save for the uncontested claim to entitlement under the Will in the Chancery action) were hopeless and occasioned the defendants in those actions needless costs. The Claimant has made clear in his submissions to me that he is quite incapable or unwilling to accept that the judgments against him in the four actions are final and that the issues resolved in those cases cannot be raised again in further proceedings. He is in my judgment fixated with what he sees as his entitlement as his father’s “heir”.

The protection of the defendants and other connected persons (which include Ms Dixon) and indeed the court from vexatious proceedings requires that the extended civil restraint orders sought should be made.

I should make it clear that the order prevents further claims relating to the Testator’s estate against Ms Dixon in respect of the one claim which survived Master Moncaster’s order. I have, as I have already said, serious doubts if there can be any surviving substance in the claim and, if the Claimant should decide to press on with it, he must first satisfy me that there is sufficient substance to justify its further prosecution. The issues would need to ventilate the relevant facts in correspondence with Ms Dixon in an effort to resolve any outstanding issues amicably (in accordance with the Civil Procedure Rules) This course should enable me to see on any application for permission both sides of any dispute.

I accordingly make orders in the terms sought by the defendants.