Fielden v Christie-Miller & Ors

This is yet another round in the dispute over the succession to the Swyncombe Estate in Oxfordshire (“the Estate”). I have already given two judgments in the matter: [2015] EWHC 87 (Ch) on 22 January 2015 and [2015] EWHC 752 (Ch) on 20 March 2015. Those two judgments were concerned with the adequacy of Stephen Christie-Miller’s part 20 claim. This round is concerned with Stephen’s attempt to re-plead his case and with a development of potentially great importance to Samuel Fielden’s claim in the main action and to Stephen’s claim. It has resulted in the issue by Stephen of three separate applications. All three are before me. So also are outstanding costs issues arising out of the applications that led to those two judgments. Before I come to these various matters it is necessary to set the scene.

Rather than simply refer the reader to the background facts briefly summarised in the second of those two judgments I repeat that summary adding to it where necessary to explain how the most recent development fits in.

The Estate is in two parts. One part is held upon the trusts established by a settlement dated 18 February 1967 (“the Settlement”) executed by Charles Wakefield Christie-Miller (“Charles”). The other part is held upon the trusts declared by the Will (“the Will trusts”) dated 15 March 1998 of William John Christie-Miller (“John”) who died on 3 May 1999. John was the only son of Charles. He had no children but left a widow, Kathleen, who died on 20 December 2004.

The Estate consists mostly of land in and around Swyncombe village. It seems that, as the years passed, Charles became concerned about the future of the Estate, in particular the likely impact on it of taxation on his death. (He died in 1976.) A strategy to mitigate the effects of tax was devised whereby the Estate was split into two, to be held in different ownerships, so as to spread and lessen the likely tax. The strategy was carried into effect and resulted in Charles transferring one part of the Estate, then known as the Swyncombe Downs Estate, to John. This was in 1958. In 1967, the remaining part was settled so giving rise to the Settlement.

It appears that, despite the split in ownership, the two parts of the Estate were run as one, a circumstance facilitated by the fact that, as I was told, although no more than discretionary objects under the trusts of the Settlement, John and, after his death, Kathleen were in receipt of the income of the Settlement, effectively as if appointments for life in their favour had been executed.

It is worth mentioning at this point what the material beneficial trust provisions were both under the Settlement and under the Will trusts. Under the Settlement a part of the Estate and various investments (“the Settlement Fund”) were settled upon and continue to be held by the Settlement trustees subject to a power of appointment, exercisable during a defined trust period, among one or more of a discretionary class of beneficiaries comprising the issue of the settlor Charles, the issue of his brother Sydney Christie-Miller, the issue of his nephew David Christie-Miller (the father of Stephen), any wife or widow for the time being of John and any spouse, widow or widower for the time being of any grandchild or remoter issue of Charles. Sam is a grandson of Charles and therefore within the discretionary class. There were various other provisions expressed to take effect in default of and subject to any exercise of the power of appointment. Under his will, subject to various specific and pecuniary legacies, John conferred a life interest in his residuary estate (which included the Swyncombe Downs Estate) (“the Will Fund”) upon his widow, Kathleen. That life interest was subject to a power of appointment over the Will Fund in favour of a class of beneficiaries which comprised Kathleen, the issue of Charles (and including therefore Sam), the issue of David Christie-Miller (and including therefore Stephen) and the spouses, widows and widowers of the respective issue of Charles and David. For a reason which will later appear I call this class of beneficiaries “the wider class”. Also, and importantly, clause 7(d) of the Will conferred on Stephen what was in effect a default interest in the income and capital of the Will Fund in that it was subject to the earlier provisions of the Will.

Kathleen survived John and had the benefit of her life interest in the Will Fund until she died on 20 December 2004. By that time, consideration was being given to what was to happen to the Estate, both that part which was subject to the Settlement and that part now held subject to the Will trusts. In particular, a selection had to be made of the person or persons, among the many named in the wide classes of discretionary beneficiaries available under the two instruments, in whose favour the two sets of trustees should exercise their respective powers of appointment. The principal contenders for the succession were Sam and Stephen. Both were within the eligible classes named in the two instruments. Sam, as I have mentioned, is a grandson of Charles, his mother being one of Charles’s four daughters. He is therefore a nephew of John. Stephen is more remotely related: as the son of David Christie-Miller he is a great-nephew of Charles, his grandfather Geoffrey Christie-Miller being one of Charles’s brothers. Accompanying this judgment is an abbreviated family tree which shows more clearly the relevant relationships.

By early 2005 the Settlement trustees had resolved to grant Sam interests in the Settlement Fund. The details of this do not for present purposes matter. It is sufficient to say that deeds giving effect to this were executed in due course. Excluded from these deeds was Home Farmhouse, a property forming a part of the Settlement Fund, in which Stephen and his family had resided since April 1996. In March 2007 the Will trustees purported to exercise the testamentary power of appointment conferred by the Will trusts. By that exercise, subject to certain trusts declared by the Will in favour of Stephen, the Will Fund with its income was thenceforth to be held for Sam absolutely. The terms of the deed of appointment (“the 20 March deed of appointment”) became a matter of controversy and resulted in the launching by Sam in August 2013 of proceedings against Stephen and the former and current trustees of the Will trusts. By those proceedings, which are brought against Stephen as the first defendant, the former Will trustees (i.e. those in office when the 20 March deed of appointment was executed) as the second to fourth defendants and the current Will trustees as the fifth to eighth defendants, Sam seeks declaratory relief concerning the true construction of the deed, alternatively rectification of it. The relief is designed to establish that the deed was effective to provide, or should be rectified so as to provide, that the income of the appointed fund is to be held for Stephen for life and that subject thereto capital and income are to be held for Sam absolutely. Stephen defends those proceedings. He contends that the correct and intended effect of the deed is that it does not cut down the absolute interest which, in the events that have happened, is given to him by another provision in the Will. He brings a counterclaim - the part 20 claim – against Sam (the first part 20 defendant), the original and current Will trustees (the second to fourth and fifth to eighth part 20 defendants) and the current Settlement trustees (the third, fourth, ninth and tenth part 20 defendants). He seeks declaratory and other relief to give effect to what he says is the correct construction of the 20 March deed of appointment. Relying on a proprietary estoppel, he asserts an interest in Home Farmhouse where he and his family continue to live.

On 22 January 2015, I delivered judgment on an application dated 19 May 2014 brought by the Settlement trustees to strike out Stephen’s part 20 claim. Two grounds were advanced. The first was that the representations upon which the estoppel was based had to be representations made by or on behalf of all of the Settlement trustees if they were to bind them. It was said that Stephen’s statement of case, even when read with his reply to the Settlement trustees’ defence, did not sufficiently allege that the representations or assurances relied upon were made by or on behalf of them all. This requirement was referred to as “the unanimity principle”. If the principle applied the estoppel claim, as then pleaded, would fail. Stephen contended that the principle did not apply to a claim alleging proprietary estoppel. I ruled against him on this and upheld the trustees’ objection. The second ground involved the so-called non-fettering principle: the principle that trustees cannot fetter the exercise at a future date of a discretion possessed by them as such trustees. The Settlement trustees argued that the estoppel was based on a representation concerning their intention as to the future exercise of their powers under the Settlement and that accordingly they could not and cannot be prevented (whether by estoppel or otherwise) from freely exercising that discretion, with the result that Stephen’s claim was likewise bound to fail. I was not willing to strike out the statement of case on that ground. It seemed to me that the non-fettering principle did not necessarily operate to defeat Stephen’s equity if the ingredients of the estoppel which he was asserting were otherwise established. At all events, I was not willing to go so far as to strike out his statement of case at that stage on what seemed to me to be a novel point in an area of developing jurisprudence given the court’s reluctance to decide novel points of law on assumptions of fact rather than on actual findings.

All of this, including the background, is set out at much greater length in the judgment that I delivered.

The matter came back to me on a separate application by Stephen, issued on 3 March 2015 (in place of an earlier application dated 24 October 2014), for permission to amend his part 20 claim in the terms of the draft attached to the application. The earlier application had been before me on the previous occasion, to be pursued in the event that I ruled in the trustees’ favour on either of their objections, but time did not allow it to be heard and, in any event, it seemed sensible for Stephen to take into account what I said on that occasion in the precise formulation of the amendments which he was seeking permission to make.

For the reasons set out in the judgment delivered on 20 March 2015 I was not willing to give permission to make the amendments as they then stood. But I was willing – and I so ordered – to give Stephen a further and final opportunity to produce a pleading which stated his case against the Settlement trustees in a simple and logical form, setting out what the material facts were (and no more) which constituted his cause of action. The previous attempts had failed to do this.

This brings me to the current round in the dispute. It has been concerned with the sufficiency of the further attempt by Stephen to amend his pleaded case and with what I describe later as ‘the recent development’. Before me on this occasion (although not when the matter was previously before me) Stephen has appeared by Gilead Cooper QC and Edward Hewitt. Richard Wilson and Harry Martin have again appeared for the current Settlement trustees. Penelope Reed QC has appeared for Sam. The Will trustees have not been represented. I start with the amendments to Stephen’s pleaded case.

Rather than attempt to amend his existing statement of case which, even without the amendments sought on the previous hearing, was not a model of concise pleading, Stephen’s new team have in effect started afresh. In substitution for the previous pleading they have produced a re-pleaded amended defence to Sam’s claim and a re-pleaded part 20 claim. I refer to it as “the revised pleading”. The result, circulated among the other parties on 4 June 2015, is a far crisper and more intelligible document. Subject to certain points which I will come to shortly Mr Wilson for the Settlement trustees and Ms Reed for Sam had no objection to an order permitting Stephen to rely on the revised pleading in place of its predecessor. Their principal reservations, as I shall explain, were to the introduction of two wholly new claims. The first (“the rectification claim”) is contained in a section of the revised pleading headed ‘Execution of the wrong will’ and resulted, I was told, from what I describe below as ‘the recent development’. It asserts, by reference to a series of matters pleaded in paragraph 4, that John mistakenly executed the wrong version of his will when he came to execute what became his last will on 15 March 1998 and that, under the material clause of what Stephen claims was the will which John intended to execute (it was an amended version of the earlier will), Sam has no interest at all. This is because the omitted clause in the later (amended) version has a narrower range of discretionary beneficiaries of the Will Fund than does the clause in the will (the earlier version) as executed. Significantly, the narrower class (as I shall refer to it) does not include Sam. In paragraph 6 above I have described the wider range, contained in the will as executed, as the ‘wider class’. On the footing that the narrower class was intended but, mistakenly, John executed a version of his will with the clause containing the wider class, the revised pleading alleges (by paragraph 8) that the Will and the Settlement trustees were “under a duty to have regard to the facts and matters set out in paragraph 4 in considering whether and if so how to exercise any discretions or powers of appointment” under the Will trusts and the Settlement but that (by paragraph 10) in considering the exercise of their powers or purported powers of appointment under the Will trusts the former Will trustees failed (in breach of various duties) “to have regard to the facts and matters set out” in paragraph 4. This can only mean that assuming the 20 March deed of appointment is construed (or, as Sam claims in the alternative, rectified) so that it takes effect as an appointment to Sam of the income and capital of the Will Fund (or, in the further alternative, Stephen is estopped from asserting that the deed has any other effect), the appointment in Sam’s favour can be of no validity as being beyond the range of permissible beneficiaries allowed by the intended clause. All of this depends upon successfully contending that the will admitted to probate is liable to be rectified under section 20 of the Administration of Justice Act 1982 (“the 1982 Act”), which is the relevant enabling provision. To this end the revised pleading alleges that that will is liable to be rectified. For reasons which I will explain later it does not itself seek rectification of the will but states simply that Stephen intends to apply for permission to issue separate proceedings for rectification. Such permission is provided for by subsection 20(2) of the 1982 Act. He needs permission because he is bringing his rectification claim more than six months from the grant of probate of the will in question. Indeed, he brings it over 15 years out of time.

The second new claim is for the removal of the Settlement trustees and the appointment of others in their place. This claim (“the trustee removal claim”) is based upon what, for short, can be described as a lack of neutrality on their part in their conduct of this dispute.

One of the three applications before me is for permission to enable Stephen to amend his existing defence and part 20 claim in the terms of the revised pleading. Another is for permission under subsection 20(2) of the 1982 Act to bring the rectification claim. The proposed claim, which is fully pleaded, is intended to be against John’s surviving personal representatives, the current Will trustees and Sam. The third of the three applications is for permission to use in the separate rectification proceedings (if permission to bring them is granted) material disclosed in the course of the current proceedings. That material includes the documents upon which Stephen relies to advance his fresh claim.

Perhaps unsurprisingly, the attempt at this stage to introduce the rectification claim into the current proceedings is opposed by Sam. It is also opposed by the Settlement trustees. So too is Stephen’s application for the court’s permission to bring a separate claim for rectification. So too is the trustee removal claim. I start by considering the new claims and in particular what it was that gave rise to the rectification claim.

For reasons which were touched on only very lightly before me the solicitors acting for Stephen had been seeking for some time to see various files which came into being in the course of the administration of John’s estate. Eventually, on 10 April of this year, they received by way of agreed preliminary disclosure a number of lever-arch files from the solicitors now acting for the Will trustees. Stephen’s solicitors then proceeded to review them. Among the many documents which were read was an attendance note dated 10 June 1999. This was only a matter of weeks after John’s death. The attendance note relates to a meeting attended by John Morcom, Michael Jodrell and Robin Peppiatt. It was also attended by a professional colleague of Mr Morcom called Catherine McAleavey. Mr Morcom and Mr Jodrell were, together with Kathleen and Canon Colin Hill, the executors named in John’s will and became the first Will trustees. Mr Morcom, Mr Jodrell and Mr Peppiatt were also at that time the trustees of the Settlement. According to the attendance note the meeting discussed, among other matters, a possible challenge by Kathleen to John’s will on the basis of a lack of testamentary capacity, and to difficulties in the relationship between her and Stephen. The meeting was aware that if such a challenge were to be successful Kathleen stood to take the whole of John’s estate under the terms of an earlier will. The meeting gave little credence to the suggestion that John might have lacked testamentary capacity at the time he executed his will and explained why. (In the event there was no challenge to the will.) The note also referred to the circumstances in which John’s last will had been made. It is this that has prompted the rectification claim. The note did so in the following terms:

“JM [Mr Morcom] explained the circumstances in which the Will had been prepared and signed, ie he had gone down to Swyncombe in February and taken draft Wills with him which he had explained to WJC-M [John] and Mrs C-M [Kathleen]. They appeared to understand the drafts and he had made some amendments in accordance with their instructions. Engrossments, incorporating those amendments were subsequently sent to them for signature. Mrs C-M telephoned to say that WJC-M would like to restrict the class of beneficiaries in his Will to Stephen and his issue and JM had sent a further engrossment but WJC-M had in fact signed the original engrossment. It was perhaps unfortunate that JM had not spotted this at the time but it was immaterial as the beneficiaries left in are only members of a discretionary class. JM said that he too was satisfied that WJC-M understood the contents of his Will and had testamentary capacity.”

The later engrossment had a narrower class of beneficiary, namely Kathleen, Stephen and his issue, their respective spouses, widows or widowers and charity. Significantly the narrower class did not include Sam or his issue.

It is appropriate to set out the context for the execution of John’s will so far as evident from the documents that have now been disclosed. They tie in with the attendance note.

It seems that late the previous year John had begun to review his existing will, executed on 5 August 1983, with a view to bringing it up to date and making it more tax-efficient. Mr Morcom (a partner at Farrer & Co) was instructed. Following a meeting with John and Kathleen in October of that year, Mr Morcom prepared draft wills for each of them which he sent to them in early December. On 10 February 1998 Mr Morcom met John to take further instructions, following which, on 18 February, he sent to John an engrossment of the will he had prepared based upon his understanding of John’s instructions. He invited John to execute it if he was happy with its contents and enclosed instructions explaining the process. The engrossment contained the wider class in that it included Sam and his wife and issue, as well as Stephen and his wife and issue, as potential beneficiaries of an intended discretionary trust of residue under which the Will trustees were to be given wide powers of appointment. The discretionary trust was expressed to be subject to a life interest for Kathleen should she survive John by 28 days and with power to apply capital to her or for her benefit. It also contained a provision whereby, failing any other appointment or application of income, residue would pass to Stephen (with a substitutional provision for his issue should he die before John). In his letter dated 18 February, under cover of which he sent the engrossment, Mr Morcom drew attention to these matters and stated that “the potential beneficiaries are largely as for the Swyncombe Settlement but I have also include[d] spouses, widows, and widowers of those persons.” He drew attention to the provision for Stephen and stated that he was aware that John had “some reservations about Stephen but it may be that your concerns are unfounded, and Stephen is probably the member of your family most likely to take a real interest in the continuation of the Swyncombe Estate.” He added that he hoped that John would agree that the trustees’ powers were “sufficient and flexible enough to enable them to react appropriately to events.”

At about the same time, Mr Morcom sent Kathleen an engrossment of her will for execution by her.

On the same day, Stephen happened to write to John and Kathleen in connection with a complaint which he understood that they had made in a letter to Mr Morcom to the effect that he, Stephen, and his wife “were behaving deviously” and were rumoured to be selling the Old Rectory without his knowledge. Stephen’s letter, couched in friendly terms, pointed out that there was no truth in the rumour and begged them to call him if in future they had any questions about the Old Rectory. (The significance of the Old Rectory and the circumstances in which Stephen purchased it in 1997 are set out in paragraph 43j of the revised pleading.) In a letter of the same date to Mr Jodrell, Stephen said how concerned he had been by the tone of John’s letter to Mr Jodrell and that it was especially disappointing to him and his wife “because we try so hard to be neighbourly, friendly and supportive to them whenever possible” but felt that “whatever we do it will be wrong”. He enclosed a copy of his letter to John “so that you know exactly what I have said in case it creates any further trouble.” It is evident from these two letters that Stephen and his wife were experiencing difficulties in their relationship with John and Kathleen at this time. These letters chime with an attendance note dated 12 February (a few days before those two letters) of a telephone conversation between Kathleen and Mr Morcom. The note, which is headed “Wills”, deals with matters which on their face appear to be about her will. The note records that “the question of the beneficiaries” was discussed. In the course of it Kathleen is recorded as concerned that according to reports she had heard Stephen might be intending to sell the Old Rectory. Mr Morcom is noted as urging caution over accepting these reports (and explaining why). The note also records Kathleen agreeing “after discussion that we should not delete Stephen altogether as a potential beneficiary” adding that Stephen “might be the only person who would be likely to keep the estate together.”

Following the exchanges on 18 February the story moves forward a few days. It seems that on 23 February Kathleen rang Mr Morcom. What she said prompted Mr Morcom to revise the terms of the two wills, John’s as well as hers, and send them new engrossments in their revised form. This appears from letters Mr Morcom wrote to each of them that same day. In his letter to John Mr Morcom stated that he had spoken to Kathleen who had said that “you did not wish to include various members of your family, who are after all fairly distant, as potential beneficiaries under your will”. He went on to state that he had therefore prepared and enclosed a fresh will for execution. The letter drew attention to the narrower class (in that it comprised Kathleen, Stephen and his issue and the spouses, widows and widowers of each of those persons) pointed out that he had included spouses and explained that charity was included as a “long stop” if at the material time neither Stephen nor any of his family “were around.”

The letter of 23 February to Kathleen began by apologising for having “misinterpreted John’s and your wishes as regards potential beneficiaries” and that what he thought had emerged from his earlier meeting with them was that they wanted “the beneficiaries to be substantially the same as in your father-in-law’s Swyncombe Settlement.” He went on to explain that following his telephone conversation with her he had prepared a fresh engrossment of her will, which he enclosed, under which the potential beneficiaries of residue were John, Stephen and his issue, any of their spouses and charity. The letter went on to explain the risk of the narrower class if a calamity were to strike Stephen and his issue “by which none of them would be around when the time came” and that she, Kathleen, had expressed herself happy with the inclusion of charity to cater for this possibility and had said that “neither you nor John would wish in those circumstances for the estate to go to John’s rather distant relations.” He added that, for good measure, as in the earlier engrossment he had included spouses of Stephen and his issue. It was this engrossment, with the class of beneficiaries in the narrower form, which Kathleen executed on 8 March 1998 and returned to Mr Morcom.

It seems that John took a little longer to execute and send back his will. And when he did he executed and returned the earlier engrossment with the wider class. He did so on 15 March 1998 which was a week later than the date on which Kathleen had executed her will.

The position therefore was that Kathleen’s will had the narrower class in accordance with Mr Morcom’s understanding of her later, revised, instruction whereas John’s had the wider class in accordance with the earlier form and notwithstanding the later instruction communicated over the telephone by Kathleen to Mr Morcom and referred to by Mr Morcom in his letter to John. On the copy on Farrer & Co’s file of the letter to Kathleen someone has written “Will executed 15/3/98 in ‘original’ format.” That can only be a reference to John’s will.

I was taken to a witness statement by Mr Morcom in which he comments on the course of his instructions from John and Kathleen leading up to the execution of their last wills. He does so by reference to the disclosed file. He states as his recollection that he was aware that John had signed the earlier engrossment and that he concluded at the time that John did not wish to exclude Sam’s family from the class of beneficiaries. He states that if at the time he had had any concerns that John had signed the wrong will he would not have sworn the oath confirming his belief that John’s will was his last will which, as a proving executor, he was required to do. Coming to the attendance note of 10 June 1999 he explains that his colleague Catherine McAleavey who was advising in connection with the administration of John’s estate made the note which, he believes, went on the probate file. He is at a loss to explain how she could have come to write the sentence “It was perhaps unfortunate that JM had not spotted this at the time but it was immaterial as the beneficiaries left in are only members of a discretionary class” as he believes it was an inaccurate record of what he said at the meeting. His belief, then and when making his witness statement, was and remains that John signed the will he wanted to sign and that he had decided that he did not want to exclude the direct line of his father’s descendants (including therefore Sam and his family) from potentially benefiting from the Estate. He could recall no conversation with John about excluding them. His only conversation about doing so was, it seems, with Kathleen (over the telephone on 23 February 1998). He points out that although Kathleen was unhappy about John’s will, believing that she should have received his estate outright, she never referred to the fact that John’s will included the issue of Charles Christie-Miller (John’s father), and therefore Sam and his family, as potential beneficiaries and did not assert at any time that he had signed the wrong will even though it contained a wider class of beneficiaries than her own did (which did not include the issue of Charles Christie-Miller as potential beneficiaries).

I was also taken to a witness statement by Michael Ward of Burges Salmon. It was made on behalf of Sam. Its materiality for present purposes is that it summarises the actions taken by Sam on the basis of the resolutions made by the then Will trustees which, among other matters, stated that Sam and not Stephen and his family would inherit the Estate. I understood this to be a reference to resolutions made by the then Will trustees in early 2005 which are pleaded in paragraph 3.7 of Sam’s particulars of claim. The gist of this is that Sam moved to Swyncombe in 2006 on the basis of those resolutions and, in so doing, gave up the day to day management of his farm in Shropshire and reduced his other commercial interests. The statement goes on to say that since then Sam has been managing the Estate as a full time job. His responsibilities are listed. Also listed, very much in round figure amounts, are the sums of money which Sam is said to have spent out of his own pocket in managing the Estate. They add up to £620,000. Sam is also stated to have provided financial support to the current Will trustees and to the Settlement trustees, for example in connection with tax liabilities. It is asserted that these are no more than an illustration of what had happened since 2005 and that it is difficult to see how the position could be unwound, even if it were the case that John executed the wrong will.

It is perhaps unnecessary to point out that none of the matters contained in these two witness statements have been tested in cross-examination.

Mr Cooper submitted that on its face the attendance note of the meeting held on 10 June 1999, when read with the letters Mr Morcom had sent John and Kathleen in February 1998, shortly before the two wills had been executed, suggested (1) that Mr Morcom realised that John had executed the wrong will which, however, he failed to spot at the time, (2) that Mr Morcom so reported to his two Settlement co-trustees present at the meeting but (3) that he advised, as the note indicates, that it did not matter as the wider class comprised discretionary objects only and it would be open to the Will trustees to confine the exercise of the testamentary power of appointment to some or all of the narrower class named in the later engrossment. He submitted that the fact that, according to the note, Kathleen had even questioned John’s testamentary capacity, even if in the event nothing came of the suggestion, made it entirely plausible that John may have picked up the wrong document and executed it without checking it carefully.

He submitted that a mistake of this kind is capable of rectification under section 20(1)(a) of the 1982 Act. He pointed out that Marley v Rawlings [2014] UKSC 2; [2015] AC 157 has given to the expression ‘clerical error’ in section 20(1)(a) a wide meaning. He submitted that its meaning was capable of embracing the error, if such it was, of John in mistakenly executing the earlier engrossment rather than the later one. In the alternative, the will which John executed was so expressed that it failed to carry out John’s instructions in that Mr Morcom failed to understand John’s instructions in relation to the class of beneficiary of the Will trust at his meeting with him on 10 February 1998. He submitted that rectification is to be achieved by replacing the class of beneficiary in the will as executed with words which, putting the matter shortly, confine the class (over and above Kathleen) to the narrower class, namely Stephen and his issue whenever born, their respective spouses, widows and widowers and charity. He reminded me that at this stage he needed only show that the claim crossed the threshold of having a realistic prospect of success. He submitted that the facts as disclosed by the correspondence recently made available to him, in particular the attendance note of 10 June 1999, disclosed a prima facie case, indeed a strong case, of mistake which Stephen should be permitted to pursue.

As for permission under section 20 (2) of the 1982 Act to bring separate proceedings, the jurisprudence required the court to apply the same criteria when deciding whether to grant permission as applied to applications to bring proceedings out of time under the Inheritance (Provision for Family and Dependants) Act 1975 (see Chittock v Stephens [2000] WTLR 643 and Reading v Reading [2015] EWHC 946 (Ch), especially at [38] where, in the context of a rectification claim brought outside the six months’ period, there is a summary of the criteria to be used in determining how to exercise the discretion). Mr Cooper explained that, although of course the claim was long out of time, it was only when the material documents were disclosed on 10 April of this year and they had been reviewed some days later that those advising Stephen saw the attendance note and realised that grounds existed for a rectification claim. Having taken Leading Counsel’s advice the decision was made to pursue the claim. The solicitors acting for the Will trustees and Sam were notified of this in mid-May, a little over a month after the file had been made available and no more than three weeks or so after the relevant documents had been seen. Mr Cooper submitted that there could be no basis for saying that Stephen, or those advising him, had been guilty of delay: they had moved as quickly as circumstances permitted. Nor, he submitted, was there any prejudice to the other parties from allowing the claim to proceed: there had been no distribution of John’s estate other than by the 20 March deed of appointment. That appointment was in dispute anyway and had been since June 2010 if not earlier, and was already a major issue in the current proceedings.

Ms Reed opposed the applications for permission to bring the rectification claim, whether as an amendment to the existing defence and part 20 claim, or as a necessary step to enable the claim to be raised out of time in separate proceedings. She submitted that, so far as its merits were concerned, the claim on the facts and other matters set out in the proposed pleading falls far short of the strong evidence which the jurisprudence required if rectification of a will is to be established. She drew my attention to a variety of points: (1) on any view the evidence disclosed much debate at the time instructions were being given for John’s will as to the class of beneficiaries to be inserted, even to the extent of excluding Stephen, (2) the instructions to engross a further will for John with the narrower class that excluded Sam were not the result of any direct instructions from John but from Kathleen, (3) John signed every page of his will, including the page with the wider class of beneficiaries, suggesting at the least that he had every intention of executing that very document and not some other, (4) the fact that John had executed that engrossment and not the later engrossment was noted without comment, let alone any surprise, on the copy of the contemporaneous letter dated 23 February which Farrer & Co retained on file, (5) there is at the very least some evidence to suggest that the attendance note of 10 June 1999 upon which so much reliance is placed by Stephen mistook what Mr Morcom was stating at that meeting but, in any event, it was worth noting that although the note referred to Kathleen’s consideration of a challenge to John’s will that challenge was not on the basis that the class of beneficiaries was incorrect and (6) John and Kathleen executed their wills on different days (using different witnesses) with nothing to indicate that they were treating them as mirror wills. Ms Reed submitted that Stephen’s case was as good as it was going to get in that full disclosure had been made and it was difficult to think what extra material could emerge. The evidence, she said, was simply not strong enough to overcome the fact that John executed in due form a will which included Sam as a discretionary beneficiary.

As regards the application to extend time, Ms Reed submitted that the fact of the matter was that, over and above its speculative nature, the claim was being advanced 15 years and nine months out of time which is a delay without precedent. In the meantime, the estate has been dealt with in complete ignorance even of the possibility of such a claim and Sam had taken steps and incurred expense on the strength of the decision made in 2005 by the then Will trustees to invite him to come to live on the Estate on the basis that it would be his. She submitted that considerations of this practical kind were the very reason why the statutory period is only six months unless permission is granted. The fact, if fact it is, that Stephen was unaware that he might have a claim until those advising him saw the file in April of this year was insufficient to overcome the delay. She submitted that, coupled with the extraordinary delay, the court should therefore refuse Stephen permission to bring the claim out of time, either as free-standing proceedings or by way of amendment to the other claims in the current proceedings.

Mr Wilson supported Ms Reed’s attack on the rectification claim, both as regards its merits and the delay in making it. He submitted that it was appropriate for the Settlement trustees to have their say on the matter since, as he put it, establishing that John’s last will should be rectified is the first step in Stephen’s attack against them in relation to their exercise of the discretions given to them by the Settlement: see paragraph 2 of the prayer for relief in Stephen’s revised part 20 claim which seeks an order “setting aside the decisions and/or resolutions made or purportedly made by [them] on 9 October 2003, 24 June 2004, 5 January 2005, on or about 8 February 2005 and on 1 March 2007” (with a like order sought against the Will trustees by paragraph 1 of the same prayer).

So much for the evidence and the submissions. I now come to the relevant law and start with the merits of the rectification claim. Unless Stephen can demonstrate that he satisfies the threshold necessary to maintain his claim (whether as an amendment to his pleaded case in the current proceedings or as a claim brought by separate proceedings) then there is no basis for permitting him to pursue either course: the relevant paragraphs of his revised pleading cannot stand and his application for permission to bring the separate claim out of time must be dismissed. If, by contrast, he surmounts this hurdle I have still to consider whether it is appropriate to permit him to include the claim as part of his revised pleading and do so at this stage of those proceedings, alternatively whether I should permit him to bring the separate proceedings so long out of time and, if so, how the overall litigation can be best managed.

The relevant test for permission to amend is well established. It is the same as for an application for summary judgment under CPR 24. It is that where the proposed amendment seeks to raise a new claim, the claim must have a real prospect of success, that is to say, a prospect of success that is more than merely arguable. Thus, an amendment which seeks to raise a version of the facts of the case which is inherently implausible or is not supported by the contemporary documents (where such documents exist or might be expected to exist) is unlikely to be permitted. Nor will the court be likely to allow an amendment which is unsupported by any evidence and is therefore purely speculative. In this connection Mr Wilson drew my attention to, and I bear in mind, what was said on the topic of “real prospect of success” by Arden LJ in Collier v P & MJ Wright (Holdings) Ltd [2007] EWCA Civ 1329; [2008] 1 WLR 643 at [21] and by Patten J in Clarke v Marlborough Fine Art (London) Ltd [2002] 1 WLR 1731 at [21] (commenting on the reason for the requirement that statements of case be verified by statements of truth). The court must be careful on an application of this kind to avoid conducting some kind of summary trial of the issues. It must also have in mind the need to consider whether the grant of permission would further the overriding objective of enabling the court to deal with the case justly and at proportionate cost. Subject to all of these considerations, amendments ought in general to be allowed provided that any prejudice to the other party caused by the amendment can be compensated in costs and the public interest in the administration of justice is not significantly harmed. All of this and more is to be found in the commentaries at paras 17.3.5 and 17.3.6 and 24.2.3 of volume 1 of the White Book (2015 edition).

Leaving aside defences based on delay and prejudice and concentrating simply on what Stephen must establish at trial if his rectification claim is to succeed, I am reminded that where what is sought is rectification of a will, namely a document which on its face was executed in compliance with certain formal requirements, the claimant has to overcome a presumption, and it is one of some weight, that the will as executed reflects the testator’s intentions. Why else go to all the trouble of getting a solicitor to advise, draft and engross the will and then go through the process of execution, complete with witnesses and, in the instant case, sign each page of the document if the position were otherwise? In Re Segelman (Decd) [1996] Ch 171 Chadwick J drew attention to these matters when stating (at page 184) that although the standard of proof in such cases is the balance of probability such is the weight of the presumption so described that convincing evidence to the contrary is needed if the presumption is to be overcome. The question therefore is whether the material before the court demonstrates that Stephen has a real prospect of proving at trial, by convincing evidence going beyond the merely speculative, that John executed the wrong will and intended instead to execute the earlier engrossment with its narrower class of discretionary beneficiaries of his Will trusts. In this regard I make no distinction here between the claim as pleaded in the revised pleading (where no actual claim to rectify John’s last will is made) and the intended separate proceedings for rectification, since the substance of the claim in both is that the last will was mistakenly executed and is liable to be rectified. The revised pleading invites the court to approach matters on the footing that the earlier engrossment should have been executed and that, having regard to what was said at the meeting on 10 June 1999, the then Settlement trustees were aware of this fact. On that basis it goes on to plead (in paragraphs 8 to 15) that the two sets of trustees failed, in breach of duty, to have regard to these matters when making decisions in exercise of their powers under the Will trusts and the Settlement.

I have carefully set out in some detail the evidence on which Stephen relies and the submissions made to me. Weighing all these matters as best I can I am of the view that, on the evidence currently before the court, Stephen fails to demonstrate that he has a real prospect of proving at trial that John executed the wrong engrossment. It is certainly arguable that he did but, to my mind, such a conclusion is essentially speculative. Might something more emerge to advance the claim? It is not evident what that might be. It is difficult to imagine that any more documents may turn up which bear upon the matter. It is, I suppose, possible that the witnesses to John’s execution of his last will may be found but I would be very surprised indeed if they could shed any light on whether he thought when executing his will that he was executing the later engrossment. There is nothing to indicate that others were involved. Kathleen may have been present but she is long dead. In any event, to suppose that something more might turn up is an insufficient basis for reaching a different view.

Mr Cooper submitted that he would wish at trial to cross-examine Mr Morcom on his statement (assuming that the statement is to stand as evidence at the trial). He outlined some of the reasons for questioning Mr Morcom’s recollection of events, so many years after they had occurred. But, even if it were to emerge from cross-examination and, contrary to his statement, that Mr Morcom did indeed say what Ms McAleavey noted him as saying and that Mr Morcom did indeed consider at the time that John had mistakenly executed the wrong engrossment, it is difficult to see how that would advance Stephen’s case: what relevance would it be to John’s motivation and actions at the time that he executed his last will that Mr Morcom, who was not present to see what was happening, is of the view when looking at the matter a year later that John mixed up the two engrossments?

Mr Cooper had a further submission. It was a gloss on the matters pleaded in paragraphs 8 to 15 of the revised pleading which, as I have mentioned, proceeds on the footing that John’s will is liable to be rectified. This was that even if permission to bring rectification proceedings should be refused the events revealed by the attendance note of 10 June 1999 provide evidence that Mr Morcom and the other Will trustees believed that John had made a mistake. From this he seeks to argue that irrespective of whether the mistake could or would have been cured by rectification it was their understanding that John’s true intention had been for Stephen and his family to inherit and for Sam and his family to be excluded. He pointed to the reference in the attendance note to the mistake being ‘immaterial’ because Sam and his family were ‘only members of a discretionary class’. With that evidence in mind, so the argument ran, the conduct of the Will trustees and of the Settlement trustees (Mr Morcom being at the time a trustee of both trusts) in deciding to favour Sam over Stephen was indefensible. So also and for the same reason was the failure of both sets of trustees to mention these matters when they took counsel’s advice in 2002 (as more particularly pleaded in paragraphs 45 and 46 of the revised pleading) and were asked by counsel whether there was anything in the files that might shed light on John’s intentions. It was inconceivable, said Mr Cooper, that counsel’s advice would not have been affected if he had been given what Mr Cooper described as “a full account of what had happened”. Both sets of trustees were, he submitted, in clear breach of their fiduciary duties with the consequence that it was strongly arguable that any decisions that they made that failed to take account of “relevant considerations” (as it was put) should be set aside. It was not a question of disregarding the express terms of John’s will. Rather, the claim merely required that the trustees should not “wilfully shut their eyes to what they knew – or believed they knew – about [John’s] true intentions” (emphasis added).

I am unable to accept this line of reasoning and do not consider that it provides the basis for a claim which has any real prospect of success. Leaving aside matters of delay and the like in advancing the rectification claim and simply asking whether John executed the wrong engrossment, either John’s will is liable to be rectified on the basis of a mistake or it is not. If, as I have concluded, the claim to rectification has no realistic prospect of success and I do not therefore allow it to be raised, the current proceedings can only go forward on the basis that there is no issue over the correctness of the executed engrossment. On that footing it must follow that Sam and his family were correctly within the class of potential beneficiaries of the Will trust and it cannot therefore be right for the Will trustees or the Settlement trustees to have to take into account when deciding how to exercise their respective powers of appointment any feeling by Mr Morcom that John had executed the wrong engrossment. Ex hypothesi John had not. Indeed, Sam and his family would have had cause to complain if either set of trustees had exercised the discretions vested in them either by disregarding Sam altogether or by attaching less weight to his ‘claims’ than they might otherwise have done simply because they thought that Sam should not have been within the eligible class of Will Fund beneficiaries. In either case they would have had regard to an irrelevant factor. If, on the other hand, I had come to the view that Stephen established that he had a real prospect of proving at trial that John did execute the wrong engrossment so that, in the event of success at trial, the matter would fall to be considered as if he had executed the later engrossment (with the result that Sam and his family would not be treated as within the eligible class of Will trust beneficiaries) then the gloss adds nothing. In such an event the Will trustees would have exceeded their powers in making any appointment in his favour, whatever their motives for doing so. I do not therefore accept that this approach provides any additional grounds for attacking the 20 March deed of appointment or any other deed or decision made by either set of trustees.

For all of these reasons I am not willing to permit the revised pleading to include the rectification claim or any reference to it. These appear in paragraphs 4, 5, 6, 7, 8, 10, 11, 12, 15, 53a, 53b and 54 of the revised pleading. There may be other references that have escaped my eye. It also follows that I am not willing to permit the separate proceedings to be brought.

I should add that if I had concluded that the rectification claim had a real prospect of success I would not have disallowed it (or refused permission to bring the separate proceedings) on grounds of delay or prejudice. On the face of the evidence currently before me Stephen cannot be criticised for the delay: he acted promptly in advancing the new claim within a matter of days of discovering the material on which he relies. Nor, on what I was shown, can he be blamed for having failed to unearth this material at an earlier date. Nor do I consider that the matters on which Sam relies for saying that he would be wrongly prejudiced if the rectification claim were to proceed after so much delay would have provided a justification for barring Stephen at this stage from advancing his new claim. In the context of the issues arising in this dispute delay and prejudice would be matters to be ventilated by way of defence at trial and properly tested with the benefit of full disclosure and after hearing the evidence. The fact that I would have given permission to bring the proceedings out of time would not, I consider, have ruled out a defence based on delay.

I can also add that Stephen is not to be criticised for having sought to bring his rectification claim (that is, for actual rectification) by separate proceedings rather than by adding the claim in the current proceedings. (As already noted the revised pleading, while pleading the various matters on which the claim to rectification in the separate proceedings is based, does not itself seek relief by way of rectification.) The reason for this was stated to be, and I accept, that the three weeks allowed by me in the judgment I delivered on 15 March 2015 for the service of an amended pleading did not allow counsel sufficient time following the disclosure of the documents on which Stephen relies to draft the claim and obtain permission for it to be brought out of time. If I had been persuaded that it had a real prospect of success and that I should give permission for it to be brought out of time then I would have directed that the revised pleading be amended to include the rectification claim. Not the least of the reasons for this would have been that the new claim as it appears in the revised pleading already incorporates most if not all of the matters material to it. In that event there would have been no longer any need to pursue the third application (for permission to use in the separate proceedings material disclosed in the current proceedings). Without consolidation of the two sets of proceedings there would have been a need for the permission sought by that application. As matters have turned out, however, I propose simply to dismiss the application to bring the separate proceedings and the related application to use in those proceedings the material disclosed in the current proceedings.

I now come to the other wholly new claim contained in the revised pleading. This is for the removal of the existing Settlement trustees and their replacement by new ‘independent’ trustees. It is pleaded in paragraphs 53 to 56 of the revised pleading. Mr Wilson, on behalf of the trustees, opposed this amendment. So also did Ms Reed on behalf of Sam.

The basis for this claim is twofold. The first is the conduct of the Settlement trustees in relation to their failure to have regard to their belief, derived from what Mr Morcom said at the meeting on 10 June 1999, that John had executed the wrong engrossment and therefore that Sam was not eligible to inherit those parts of the Estate which formed a part of the Will Fund. The consequence of this, so the argument ran, is that the Settlement trustees should have had regard to that fact when deciding whether and how to exercise their powers of appointment under the Settlement. The allegation appears in paragraph 53a of the revised pleading. (Paragraph 53b is a variant of the same allegation.) The other basis for the plea is best understood from a reading of the material allegation which is contained in paragraph 53c:

“In their conduct of these proceedings [the current Settlement trustees] have not acted neutrally or impartially. Instead, they have sought to strike out Stephen’s Part 20 Claim on the grounds, inter alia, that he had failed to plead specifically that Robin Peppiatt knew of the representations that had been made to Stephen by Michael Jodrell. They made this application knowing that that Robin Peppiatt did in fact know of the said representations, and that if they had to give disclosure they would be obliged to disclose evidence confirming or supporting this fact. Stephen will rely in particular on the letters from [there is then reference to two letters to Mr Morcom of July 2003].”

The revised pleading then goes on (in paragraph 54) to allege that the Settlement trustees put themselves in a position of conflict where their personal interests were in conflict, or potential conflict, with those of the beneficiaries. It maintains this complaint on the basis that the Settlement trustees failed “to communicate to the beneficiaries the facts and matters set out in paragraph 4 above (relating to the circumstances leading to the execution by [John] of the wrong Will)…” or to take those circumstances into account when exercising their powers. (The pleading then refers to “powers under the Will” when it should, I think, refer to the Settlement.)

In so far as the trustee removal claim is based to any degree on the belief of Mr Morcom, communicated to the Settlement trustees, that John had executed the wrong engrossment (see paragraphs 53a and 54), the plea has no real prospect of success. I have set out the reasons for this earlier in this judgment and do not repeat what I have said.

What then of paragraph 55? This pleads that the Settlement trustees acted to prevent Stephen from having access to certain files. I am in no position to say whether there is any substance in the allegation which, moreover, is unparticularised. All that is pleaded is that “efforts” were made to prevent him from having access to the files. It does not plead what those efforts were. I do not need to take further time considering the matter as the contents of the paragraph, by its own terms, are said merely to be a “reflection” of the conflict of interest pleaded in paragraph 54. In my view, if paragraph 54 cannot stand there is no basis for allowing paragraph 55 to remain.

That leaves the allegation in paragraph 53c that the current Settlement trustees have adopted a hostile stance to Stephen’s claims when they should have remained neutral or impartial. He was after all a beneficiary of the Settlement and on one view at least the dispute in these proceedings can be regarded as being between him and Sam as the contenders for the succession under the powers available to the trustees contained in the Swyncombe Settlement. Mr Cooper submitted that the conduct of the Swyncombe trustees in relation both to the exercise of their discretion and to what he described as their “highly partisan” conduct of the current proceedings has justifiably caused Stephen to lose all trust and confidence in them and therefore that they should be removed and replaced by other suitable professional trustees. He expanded on this by submitting that the true contest in the subject matter of these proceedings, namely who should get the Estate, has at all material times been between Sam and Stephen, that both are parties to the proceedings and that, although (and necessarily) parties to the proceedings, the Settlement trustees should have adopted a stance of neutrality but failed to do so. They have adopted a hostile approach to Stephen’s claim by (a) defending it on the merits and (b) applying to strike it out. It was noteworthy, he submitted, that the Will trustees had adopted a neutral stance in relation to the matters involving the issues affecting the Will trusts and noteworthy also that, in relation to the rectification claim – the outcome of which should have been a matter of indifference to them – the Settlement trustees had adopted a hostile position and instead had addressed submissions as to why I should disallow it. Rather than apply to the court for directions as to what they should do they have obtained an indemnity from Sam for their costs. If they had applied to the court for a Beddoe order to cover their costs of opposing the rectification claim the court, he submitted, would surely have said that this was a dispute between Sam and Stephen and that the two of them should be left to fight it out with the trustees remaining neutral. In the light, however, of the stance they have adopted, then whether or not Stephen is successful it is impossible to think that Stephen can continue to have confidence in them over their continued trusteeship of the Settlement. The claim for their removal has, he submitted, a real prospect of success.

Mr Wilson, supported by Ms Reed, submitted that it was entirely appropriate for the Settlement trustees to defend Stephen’s claims as the estoppel claim to Home Farmhouse was brought against the Settlement trustees rather than against Sam (to whom the property had not been appointed). Having chosen to sue them, Stephen cannot complain that they took steps to resist the claim both by defending it and, on advice, by seeking to have it disposed of without the need to go to trial. There could be no basis, he submitted, for suggesting that this justified Stephen’s subsequent claim – in the revised pleading – that their defence to his claim provided grounds for their removal. Any reference, he said, to Beddoe relief was not in point. The Settlement trustees have not chosen to obtain such relief which goes to their costs. Thus far they have been content to rely on an indemnity by Sam. He submitted that if they had sought a Beddoe order they would have been successful. They may yet apply.

I cannot avoid the feeling that there is something opportunistic about this new claim in so far as it rests on the fact that the Settlement trustees pleaded a defence to and later sought to strike out Stephen’s estoppel claim. This is because until the change of counsel representing Stephen no objection was taken (or none that found expression before me) either to the fact that the Settlement trustees pleaded a defence to Stephen’s estoppel claim or to the fact that they subsequently applied to have it struck out (resulting in the judgment of 22 January 2015) or to the fact that they later objected to the sufficiency of his amended pleading (resulting in the judgment of 20 March 2015).

Over and above that, I take the view that the part 20 claim against the Settlement trustees was plainly ‘hostile’ litigation to which the trustees were entitled to plead. After all, their conduct was being called into question over whether they or any of them made the representations. I do not consider that a trustee’s duty of neutrality as between the beneficiaries for whose benefit he holds the trust fund requires him to take no position when his own conduct is called into question. Moreover, it is not immediately obvious that Sam is the appropriate person to take up the defence of the estoppel claim: Home Farmhouse to which it relates has not been appointed to him; it continues to be a non-appointed asset which is held by the Settlement trustees as a part of the Settlement Fund; whether and how it is to be appointed remains at large. In my view, therefore, not only were the Settlement trustees entitled to defend the claim but, absent some kind of representation order enabling one of the beneficiaries, presumably Sam, to defend the claim (and it is to be noted that none was sought), the trustees might have been open to criticism if, believing the claim to be without merit, they had stood by and done nothing. They could have applied for a Beddoe order. They did not. Instead, as I understand it, they chose to defend the claim with the benefit of an indemnity from Sam. I see nothing objectionable in them having taken that course. I do not see that it compromised any duty of neutrality or impartiality towards the Settlement beneficiaries which they might be said to owe. The fact that they then chose to attack the claim by seeking summary judgment in their favour, alternatively its strike-out, did not put them into any different position.

I propose therefore to disallow the entire trustee removal claim.

The only other items to be considered on Stephen’s application for permission to amend are objections raised by the Settlement trustees to matters set out in paragraphs 43 and 48 of the revised pleading. To these I now come.

Mr Wilson objected to the start and end dates of the period in which the estoppel claim is said to have arisen. The paragraph pleads as follows:

“Between about October 1994 and January 2005 Stephen was encouraged to believe that he had been chosen to succeed to the Swyncombe Estate after the deaths of John and Kathleen. This belief was known to, and encouraged or acquiesced in by, inter alia, the trustees from time to time of the Swyncombe Settlement: [particulars are then set out]”

Mr Wilson submitted that the start date, “about October 1994”, cannot be sustained because it was only in February 1995 that David Christie-Miller resigned as a Settlement trustee and that, as Stephen has elsewhere pleaded, he did so precisely because he felt a conflict of interest (as a Settlement trustee and also as father of Stephen) in discussing with his co-trustees the possibility that his son might be chosen to be the successor to the Swyncombe estate following the deaths of John and Kathleen. It follows, said Mr Wilson, that no decision concerning the future of the estate could have been made until after David had resigned and been replaced by Mr Peppiatt, which was on 16 February 1995, and, what is more, Stephen cannot have acquired any (or any reasonable) belief that he had been chosen to succeed to the Estate before that February date. It further followed, he said, that in so far as the estoppel claim relies on matters occurring before 16 February 1995 those matters can serve as no more than “mere background”. As to the pleaded end date (“January 2005”) the claim is unsustainable because, as previously pleaded, on 31 January 2003 Mr Morcom wrote to Stephen to say that no-one had yet been chosen to succeed to the Estate, in reply to which Stephen’s solicitors wrote urging the very matters on which Stephen now relies in support of his estoppel claim. It follows, said Mr Wilson, that Stephen cannot have acquired any (or any reasonable) belief that he had been chosen to succeed in reliance upon any matters occurring after 31 January 2003 with the result that matters occurring after that date are of no causative relevance to the estoppel claim.

I am unable to accept the objection to the start date. I see no necessary inconsistency between David deciding in February 1995 that he could no longer remain a Settlement trustee while his son was under consideration as successor to the Estate (implicit in which is that no decision by the trustees had yet been made) and the making to Stephen prior to that date of representations which led him to believe that the decision had already been made and that he had been chosen. There is force in the objection to the end date of January 2005. However, I shall not require it to be altered. The fact is that the only matters which Stephen pleads as giving rise to his belief that he would succeed are matters which predate 31 January 2003. They are set out in paragraph 43 of the revised pleading. (The matters alleged in paragraphs 45 to 47, some of which postdate January 2003, all go to the Settlement trustees’ awareness of Stephen’s expectation.) I do not regard it as the court’s function on an application to amend to examine all of the new allegations and require infelicities and other defects to be corrected if their presence does not leave the other parties unclear as to what is being relied upon. The end date does not add anything in the light of the absence of any specific representations of matters occurring after (so far as I can discern) October 2000 as having encouraged Stephen to believe he had been chosen to succeed to the Estate. It is clear what the matters are upon which Stephen relies.

The Settlement trustees object to the presence of the following paragraph in the revised pleading:

“Further, the Swyncombe Trustees are represented in these proceedings by a single firm of solicitors and by the same Counsel. It is to be inferred from this that there is no conflict of interest between them, such as would arise if one trustee had made representations on behalf of the Swyncombe Settlement without the knowledge or authority of the other trustees. In the absence of any express plea by the a trustee that he or she did not know and approve what had been represented to Stephen, Stephen will rely on the requirement that trustees must act unanimously, and on the presumption ‘omnia praesumuntur rite esse acta’.”

It is necessary to understand just what is being alleged in that plea. It seeks to draw inferences from the fact that the four Settlement trustees share the same legal representation. The underlying assumption is that they could not do so if there was any disagreement between them over what each had said or done when acting in a trustee capacity and the authority with which that person had so acted. Mr Wilson challenged the adequacy of the plea. He did so on several grounds. He submitted that it assumed as a fact that relevant representations to Stephen upon which he relies had been made just as he alleges, whereas the Settlement trustees are at one in denying that any had been made. Second, even if it should turn out to be the case that one or more representations had been made as Stephen alleges, the trustees are at one in contending that the maker lacked any authority to bind the others. In those circumstances, he submitted, there is nothing unusual or improper in all four Settlement trustees acting by the same solicitors and counsel and no inference of the kind alleged can arise. He further submitted that the plea represented a further collateral attack on the judgment I handed down on 22 January 2015 in which, at paragraphs 22 to 26, I rejected an argument advanced on Stephen’s behalf to the effect that representations or assurances made by one trustee will bind the others if it was reasonable in the circumstances for the person to whom they were made to rely upon them in the belief that they were made by or on behalf of all of them. Finally, Mr Wilson submitted that the reference to the ‘omnia praesumuntur’ presumption was not in point as it only applies to cases of the kind in issue here where an intention to do some formal act is established and where the evidence is consistent with that intention having been carried into effect in a proper way but when observance of all the formalities can only be inferred as a matter of probability. He referred me to what Henderson J said in reference to the topic in Entrust Pension Ltd v Prospect Hospice Ltd andAnor [2012] EWHC 3640 (Ch) at [38] – [41] including in particular a dictum of Lindley LJ in Harris v Knight (1890) 15 PD 170 at 179-80. Here by contrast no formal act was in issue, merely questions of authority, and in any event the trustees in question are well able to say exactly what they did or did not authorise.

Mr Cooper’s argument in support of the plea was to the effect that where one trustee makes a representation to a beneficiary, for example that some decision had been made, the burden lies on the other trustees to “set the record straight” if they do not accept that their colleague spoke also for them when he made the representation. He went on to submit that if three of the four trustees deny knowledge of, or concurrence with, statements made by the fourth, there would be a conflict of interest between them and separate representation would be necessary. As there had been no such denial and no separate representation it was to be assumed that the statements made were with the knowledge of the others or with their concurrence. If the position was not as he described, it was for the other trustees to say so and, as appropriate, for them to be separately represented. He then went on to refer me to a letter from which it was to be inferred that Mr Peppiatt at least was aware that Stephen had been led to believe that the Estate would be appointed to him.

As I understood him, Mr Cooper accepted that the ‘omnia praesumuntur’ presumption was not in point and, even if he did not, I am of the view that for the reasons stated by Mr Wilson it does not apply. Nor, in the light of their unanimous denial that any representations were made to Stephen or, if any were, that the maker had the authority of the others to do so, can I see that there is any conflict between the four trustees such as to warrant separate legal representation. Even assuming that there is an onus on the other trustees to distance themselves, by express plea, from the actions of one of their number if they disagree with what that one has said or done, the absence of any such plea, coupled with the fact that there is single legal representation of all four trustees, cannot be taken to be an acceptance that what that one did or said was with their authority.

It follows that paragraph 48, as currently pleaded, cannot stand. On any view the last sentence must go. The first sentence is innocuous. So also is the second sentence up to the words “between them”. But, shorn of the rest of the paragraph, the plea leads nowhere. In my judgment, the simplest course is to disallow the whole paragraph. Finally, I would add that I do not read the paragraph as an impermissible collateral attack on my earlier judgment in the sense that it seeks to revisit the same point. I do see it as an attempt, by recourse to other means, to get around the difficulty in Stephen’s case as then pleaded which was highlighted by the judgment. The trouble is that, for the reasons explained, it does not succeed in doing so.

On the application for permission to amend I shall allow the revised pleading except to the extent identified in paragraphs 44, 56 and 65 above. I dismiss the other two applications.

There are two areas of cost that need to be dealt with. The first concerns the costs of the earlier strike-out application. These were left for future decision at the conclusion of the earlier hearings. They were the subject of written submissions both by Mr Wilson and Mr Cooper on the current hearing. As Sam was not a party to the strike-out Ms Reed was not concerned to address any submissions in regard to the costs incurred.

Mr Cooper accepted that as the Settlement trustees had succeeded, subject only to any application by Stephen to keep his claim alive by appropriate amendment, they should have their costs on the basis that in general costs follow the event. He accepted that the fact that the trustees had not succeeded in their argument on the non-fettering principle did not mean that the court should inevitably deal with the costs on an issue basis. He nevertheless invited me to reflect that the trustees had not succeeded on that issue. I am not willing to do so. The outcome of that issue was not that I accepted Stephen’s argument but simply that I was not willing at that stage to go so far as to strike out his statement of case on what seemed to me a novel point in an area of developing jurisprudence without the benefit of actual findings as distinct from assumptions of fact. In any event quite a lot of the argument on the issue involved examining an authority upon which Stephen’s then counsel placed great reliance but which, for the reasons explained in my judgment dated 22 January 2015, I held to be of no assistance to Stephen’s argument. I am of the view that, subject only to Mr Cooper’s other point, the general rule should be applied and that the costs should follow the event.

That other point, which Mr Cooper suggested took the case out of the ordinary, was that the Settlement trustees had had control of evidence which, he submitted, would – potentially at least – greatly strengthen Stephen’s case and which they should have disclosed voluntarily. He submitted that they had wrongly embarked on what he described as “an unambiguously hostile claim, bankrolled by Sam, the effect of which would be, if successful, to weaken if not undermine completely Stephen’s position.” He referred also to some of the trustees being in a position of conflict because, he submitted, the material disclosed exposed them to professional claims. He described as tricky and lacking in candour the trustees’ failure to particularise in their pleading how all of them came to know, if ultimately it is established that they did, what Mr Jodrell had represented to Stephen (I assume at a meeting in October 1994). He asked me to assume when dealing with costs that Stephen is ultimately successful in showing that the Settlement trustees acted improperly, not least when it was possible that further information will come to light that will have a bearing on their conduct. In these circumstances he invited me to reserve the costs to the trial when the trial judge would have heard all the evidence. He submitted that this would not cause any prejudice to the trustees.

I am aware that the Settlement trustees did not wish to give disclosure and were exempted from doing so prior to the conclusion of their strike-out application. I see nothing sinister in that. On the contrary it strikes me as reasonable and proportionate. Beyond that, I have seen nothing which indicates that the trustees have acted improperly over disclosure. It is not evident to me what the material is which exposes the trustees or their advisers (or any of them) to professional claims. Nor am I able to discern anything tricky in their defence to Stephen’s claims. And I am not willing to reserve costs to the trial on the basis that something might turn up to help Stephen’s cause or show the Settlement trustees in a bad light, much less because Stephen might win at the trial. The plain fact of the matter is that the trustees applied successfully to strike out a defective pleading and there is no good reason why I should not deal with their costs, along with all of the other costs, here and now. In my judgment the Settlement trustees are entitled to their costs of their strike-out application.

The other area of costs concerns the costs of Stephen’s various applications to amend his pleadings and of his applications for permission to bring separate rectification proceedings and for permission to use in those proceedings any material disclosed in the course of the current proceedings. On the face of it, but I will listen to argument if to any extent this is not accepted, Stephen must pay Sam and the Settlement trustees their costs of the two last-mentioned applications. I have dismissed both of them. It is very hard to see that there can be any challenge to Stephen having to bear the costs of that result.

As regards Stephen’s application to amend and, in so far as it remains to any extent outstanding, his earlier application to amend dated 3 March 2015 (superseded I assume by the current application) which in its turn replaced an earlier application to amend dated 24 October 2014, it would seem on conventional grounds that he must also pay the costs of the other parties to the current proceedings of and caused by the need to plead to the revised pleading so far as I have allowed it. These costs will comprise those thrown away by the fact that they have been incurred in pleading to a defence and counterclaim which have now been abandoned in favour of the revised pleading to which they are now going to have to plead, probably by a wholly new pleading. I do not know what those costs are. They will include the costs of the application dated 10 November 2014 which Stephen made to Norris J and which that judge ordered should be costs in Stephen’s application of 24 October 2014. It would seem that as a matter of form I should either dismiss or make no order on the earlier applications to amend.

That leaves the costs of the hearing before me and of the earlier hearings, so far as attributable to the current application to amend and the applications which it replaced. There was no opposition to my giving permission for much of the revised pleading. To the extent that it was opposed Stephen only succeeded to a very limited extent (confined to paragraph 43 and then only really to the start date). In the overall context of the issues which arose for decision the time and costs devoted to this one paragraph are not, on the face of it, sufficient to justify doing other than directing Stephen to pay all of the costs of that application and thus of the hearing as whole. I am open to contrary argument if Stephen wishes to submit that I should follow another course.

Any costs award ought to be on the standard basis but there may be matters relevant to this – none have been drawn to my attention – which might justify the indemnity basis. Likewise it would seem right that there should be a payment on account. What that sum should be (some figures were set out in the costs submission prepared by Mr Wilson and Mr Martin but they were said to be incomplete) and what the time should be for payment have yet to be finalised. I am asked by Mr Wilson and Mr Martin to order a payment on account within 14 days of £120,000 which they say is approximately 55% of the Settlement trustees’ costs of the strike out/summary judgment application. That percentage level seems to me to be about right. I am unable to comment on the trustees’ overall costs figure of just under £220,000 inclusive of VAT or on the appropriateness of the time for payment. This figure, I was told, includes their costs of Stephen’s first amendment application (issued on 24 October 2014) and his second amendment application (issued on 3 March 2015) but does not include their costs thrown away by Stephen’s amendment to his pleadings or their costs of the three applications which are now before me. I do not know what Sam’s costs are or what costs order he seeks. These are matters which can be disposed of either in writing or, if this would be simpler and cheaper, at a further hearing.