Haastrup v Okorie & Ors

In this claim there are presently four outstanding applications by notice. Of these, two are brought by the Claimant against the First Defendant, and two by the First Defendant against the Claimant. In order of issue they are as follows:

In this judgment I deal mainly with the first, but also to some extent with the third, of these applications. They are made in hotly contested proceedings, arising out of the death of the deceased. Originally there were at least four other claims in the High Court so arising, or at least involving his assets, as well as two in the county court, and other proceedings in Nigeria. The main focus of this particular claim is the alleged use by the First Defendant, both before and (curiously) after the death of the deceased, of a power of attorney (“the Power”) dated 15 June 2010, allegedly drawn up by the Second Defendant and executed by the deceased in favour of the First Defendant and the Fifth Defendant.

The claim was formally commenced by claim form dated 22 January 2015, originally under Part 8 of the Civil Procedure Rules (“CPR”), for various orders in relation to the Power. In summary, these are orders (i) that the Power is (a) void for lack of mental capacity when it was purportedly granted, or alternatively (b) voidable for non-compliance with the Mental Capacity Act 2005, (ii) restraining the First to Fourth Defendants from further relying on the Power after the death of the deceased, and (iii) for an account of assets of which the Defendants “had control by virtue of” the Power.

The Claimant claims to be the son and eldest child of the deceased, who died in England on 8 October 2012. The First Defendant denies the Claimant’s paternity, which is thus in issue. The First Defendant claims to be the widow of the deceased (but is not the mother of the Claimant). The Claimant says she is not the deceased’s widow, because she was divorced from the deceased at the time of his death. This too is in issue. The Second Defendant is a Nigerian lawyer and partner in the Third Defendant, and the Fourth Defendant is stated to be the other partners in the Third Defendant (but they are not stated to be a separate body, and neither are they listed). The Fifth Defendant is an admitted son of the deceased. All the defendants except the First Defendant dispute jurisdiction, and the proceedings so far have been carried on only between the Claimant and the First Defendant.

The procedural history of the claim is complex but important. On 20 January 2014, the Claimant had obtained letters of administration in the Federal Capital Territory High Court, Nigeria, to the estate of the deceased. On 20 June 2014 those letters were resealed in the Leeds District Probate Registry. The present proceedings began before the issue of the claim form, with a without notice application to Birss J on 20 January 2015, in which he was asked to grant an interim injunction, in favour of the Claimant, against all the Defendants to restrain them from using or relying on the Power. Because the First Defendant was not aware of the application and therefore was not present or represented, the judge made a temporary order, until 27 January 2015 or further order in the meantime. As mentioned already, the claim form was issued on 22 January.

However, on 27 January, the temporary injunction expired and the Claimant returned to court to seek a fresh injunction for the future. On this occasion, however, the First Defendant was represented and was heard. As a result, Nugee J declined to renew the injunction. The judge was apparently concerned by the Claimant’s failure to disclose to Birss J at the earlier hearing that on 20 July 2014 the Claimant had himself been injuncted by a Nigerian court (the Federal Capital Territory High Court) to restrain him from relying on the letters of administration or from “parading himself as in any way as the Administrator” of the deceased’s estate “within or outside Nigeria”. This injunction had been granted pending litigation in Nigeria. Moreover, the Leeds District Probate Registry, having become aware of the Nigerian litigation, had by letter of 27 August 2014 informed the Claimant that it was recalling the resealed grant, pending investigation. The Claimant’s appeal against the imposition of the Nigerian injunction was said by the First Defendant to have been dismissed on 8 December 2014, although the Claimant contests this. (Having subsequently been so informed, on 12 February 2015 the Leeds District Probate Registry cancelled the resealed grant in this jurisdiction.)

Nugee J adjourned the Claimant’s application for an injunction to be heard at a later date. Although this had been commenced as a Part 8 claim, the claim form stated that particulars of claim were nonetheless “to follow”, and the Claimant served such particulars on 5 February 2015. On 5 March 2015 Deputy Master Nurse ordered that the claim proceed as if under CPR Part 7, and gave permission to the Claimant to serve amended particulars of claim by 19 March 2015. The Claimant did so.

The Claimant’s application, together with a further application by the Claimant for summary judgment on the claim, was ultimately heard by David Halpern QC, sitting as a deputy High Court judge, on 20 May 2015. On 5 June 2015 the deputy judge delivered judgment and, on the First Defendant’s undertaking not to use the Power within the United Kingdom until trial or further order, made an order dismissing both applications. He also ordered the Claimant to pay the First Defendant £23,000 in respect of costs on the indemnity basis, summarily assessed. He also recorded that the summary judgment application had been totally without merit. The Claimant lodged notice of appeal against these orders, and for a stay, on 23 June 2015. So far as I am aware, the Court of Appeal has yet to make any decision on these applications.

In giving judgment, the deputy judge expressed the view that there were strong grounds for striking the claim out, because (i) the Claimant had failed to establish that he had any title to sue at all, given that any claim relating to the validity of the Power would be vested in the deceased’s estate, and the existing litigation in Nigeria over the disputed will and the interim injunction restraining the Claimant from using the Nigerian letters of administration meant that the Claimant himself could not (at present, at least) be the proper claimant in any event, and (ii) the proper parties were not before the court, there being no representative of the deceased’s estate.

On 18 June 2015 the First Defendant, no doubt having considered what the deputy judge had said, issued the first of the four applications to which I have referred. Under the application notice, she seeks an order (i) that pursuant to CPR r 3.4(2)(a) and/or (b), and/or the court’s inherent jurisdiction the claim be struck out, alternatively (ii) for summary judgment, on the basis that the Claimant has no real prospect of succeeding on the claim and there is no compelling reason why the case should be disposed of at trial, alternatively (iii) striking out certain paragraphs of the particulars of claim, and (iv) that the Claimant pay the costs of the application. This was supported by a witness statement of Rajesh Pabla, dated 18 June 2015, and opposed by a witness statement of Isi Inyang, dated 6 August 2015.

On 6 August 2015, the Claimant issued an application for “an order that the First Defendant produce the original letter dated 18 January 1969 for forensic purposes”. This is a reference to a letter purportedly written by the deceased stating that the Claimant was not his son. The application was supported by a witness statement of Isi Inyang, dated 6 August 2015, opposed by a witness statement of the First Defendant (her 3rd) dated 11 August 2015, and further supported by a witness statement of the Claimant dated 12 August 2015.

On 10 August 2015, the Claimant issued an application for “an order for the appointment of [the Claimant] as a personal representative of the estate of [the deceased] under CPR 19.8(1)(a) for the purpose of the above claim, or for [an order that] the claim proceeds without a representative”. This was served on 11 August. It was supported by a witness statement of the Claimant dated 10 August 2015, and opposed by the 4th witness statement of Rajesh Pabla, dated 21 September 2015.

On the same day I held a case management conference in all the related Haastrup cases remaining in the High Court, having taken over the case management of all such cases.

On 12 August 2015 this matter came before me on its own, when the First Defendant’s application to strike out was listed for hearing. However, in light of the recent issue of the third application (for the Claimant to be appointed as personal representative), which was not then listed before me, it was agreed that, logically, that application should be decided first, and so those two applications were adjourned to be heard together, on 19 and 20 October 2015. I gave directions for the service and filing of further evidence.

On 13 October 2015, the First Defendant issued a further application for orders (i) that, if the claim is not struck out, it be stayed “until (a) the Claimant undergoes a DNA test to establish whether or not he is the son of [the deceased] or (b) further order”, and (ii) that “unless the Claimant pays the order for costs in the sum of £23,000 made on 2 June 2015 within 14 days the claim be struck out”. This was supported by witness statements of Rajesh Pabla (his 5th) dated 13 October 2015, Emanuel Ademola Haastrup, dated 24 September 2015, and Femi Allen-Taylor, dated 5 October 2015, and opposed by a witness statement of the Claimant dated 16 October 2015.

At the hearing on 19 October 2015, Mr Ivan Krolick of counsel appeared for the Claimant, and Mr Neil Vickery of counsel appeared for the First Defendant. The hearing lasted two days, including half a day of reading time. At the end of the hearing, I gave permission to both parties to provide further written submissions on certain points. That process concluded on 28 October. I am very grateful to both counsel for their efforts and assistance, and for their able arguments. I am sorry for the delay in producing this written judgment.

I begin with this application, because it was argued first. After hearing argument, I dismissed it, for reasons which I gave at the time. Nevertheless, in order to deal properly with the First Defendant’s strike out application, I need to set out some aspects of that application here.

CPR r 19.8, so far as material, provides as follows:

“(1)

Where a person who had an interest in a claim has died and that person has no personal representative the court may order –

(a)

the claim to proceed in the absence of a person representing the estate of the deceased; or

(b)

a person to be appointed to represent the estate of the deceased.

(2)

Where a defendant against whom a claim could have been brought has died and –

(a)

a grant of probate or administration has been made, the claim must be brought against the persons who are the personal representatives of the deceased;

(b)

a grant of probate or administration has not been made –

(i)

the claim must be brought against ‘the estate of’ the deceased; and

(ii)

the claimant must apply to the court for an order appointing a person to represent the estate of the deceased in the claim.

(3)

A claim shall be treated as having been brought against ‘the estate of’ the deceased in accordance with paragraph (2)(b)(i) where –

(a)

the claim is brought against the ‘personal representatives’ of the deceased but a grant of probate or administration has not been made; or

(b)

the person against whom the claim was brought was dead when the claim was started.”

The Claimant’s paternity is in dispute, but he claims to be the eldest son of the deceased, and for the purposes of the application I proceeded on the basis that he would be able to prove what he asserts. Nevertheless, the Claimant originally accepted that he could not bring his claim in his own name and for his own behalf. This was a claim that had to be brought by or on behalf of the estate of the deceased. Nor, he accepted, could he rely on the Nigerian letters of administration, because of the existence of the Nigerian injunction, and therefore not on the resealed English letters either. So he sought an order, either that he be appointed under r 19.8(1)(b) to represent the estate in the claim, or that under r 19.8(1)(a) the claim proceed in the absence of a person representing the estate.

The starting point is that, subject to the possible application of procedural rules such as CPR r 19.8, an action brought on behalf of a deceased’s estate by a person as administrator who at the date of commencing the claim does not have a grant is a nullity. In Ingall v Moran [1944] KB 160, the plaintiff issued a writ of summons claiming to sue as administrator of his son’s estate, but did not take out letters of administration to the estate until several weeks later. The Court of Appeal held that the action was a nullity, which was not saved when the grant was later obtained.

The court in that case was clear, referring to Chetty v Chetty [1916] 1 AC 603, that the position was different where a will appointing an executor was concerned, for there the title of the executor once confirmed related back to the death, whereas the title of the administrator derived solely from the grant. The court was also clear that the proper procedure for the interim protection of an estate under threat without an executor was for a person who was a beneficiary of the estate to apply for the appointment of a receiver pending the grant of letters of administration. This view of the general position was further confirmed by the decision of the Court of Appeal in Millburn-Snell v Evans [2012] 1 WLR 41 (see especially the judgment of Rimer LJ – with whom Lord Neuberger MR and Hooper LJ agreed – at [16], and cases there cited).

The impact of the procedural rules, and in particular CPR r 19.8(1), on this general position was considered recently by the Court of Appeal in Millburn-Snell v Evans [2012] 1 WLR 41. In that case, before the deceased’s death his solicitors had been advancing a claim in correspondence to an interest in certain land based on proprietary estoppel. But no claim form had actually been issued at the date of his death, intestate. More than a year after his death the solicitors, now acting for the deceased’s daughters, issued the claim form in the action, stating in the particulars that the daughters were “the personal representatives of” the deceased “and are entitled to bring this claim on behalf of his estate”. This allegation was not admitted in the defence, which also disputed the claim more generally. In fact, though they would have been entitled to apply for letters of administration, they had not yet done so. Some months later, and only a few days before the trial was listed to begin, the defendant, having realised that the claimants had no grant, applied to strike out the claim. The application succeeded before the judge, and the claimants appealed.

The Court of Appeal held that the proceedings were a nullity, and that CPR r 19.8(1) could not be used to cure the defect. After considering RSC Ord 16, r 46, which was the predecessor rule to r 19.8(1), and the decision of the Court of Appeal in Lean v Alston [1947] KB 467, the court concluded that the words “person who had an interest in a claim has died” in that sub-rule applied only to the case where the claim in question had already commenced, and then the claimant or some other person having an interest in it died. Accordingly, the appeal was dismissed.

On that basis, of course, r 19.8(1) did not assist the Claimant in the present case, because here the deceased died in 2012, and the claim was commenced only in 2015. It was therefore not open to the court either to appoint the Claimant as personal representative of the estate for the purposes of the claim under r 19.8(1)(b) or to order that the claim continue in the absence of a personal representative under r 19.8(1)(a). It was common ground that none of the other sub-rules in this rule would be of any assistance to the Claimant.

Mr Krolick for the Claimant did however seek to argue that the discussion by the Court of Appeal of r 19.8(1) was mere obiter dicta, and no part of the decision of the court, because the ratio decidendi was that the proceedings were an incurable nullity. I did not agree. The argument for the claimants/appellants was that, even if the claim was a nullity, it was not incurable because r 19.8 empowered the court to cure it. It was therefore necessary for the Court of Appeal to deal with the r 19.8 argument in order to be satisfied that the nullity was indeed incurable. In my view the discussion of r 19.8 is part of the ratio, and was binding upon me. Even if I were wrong about this, and it were not, I would still have followed it, as it seemed (and seems) to me to be clearly right, for the reasons given by the Court.

That really meant the end of the Claimant’s application to be appointed personal representative, at least as originally formulated. I therefore did not pause to consider whether, if the court had had the power under r 19.8(1), it would have acceded to the application. Nevertheless, for completeness I record here, without comment, the fact that the suitability of the Claimant for such an appointment was strongly contested by the First Defendant (see in particular para 25 of the First Defendant’s skeleton argument of 14 October 2015).

But the Claimant had another argument. This was that there were here “special circumstances” in which the Claimant as a beneficiary of the estate should be able to bring a claim on behalf of the estate against a wrongdoer such as he alleged the First Defendant to be. Although this was not referred to expressly in the Claimant’s application notice of 10 August, it was briefly mentioned in the Claimant’s skeleton argument of 9 August, prepared for a hearing which in the event did not take place until 19 October.

That skeleton refers (at [9]) to Re Field [1971] 1 WLR 555 (approved by the Supreme Court in Roberts v Gill [2011] 1 AC 240) as justifying the proposition that where there are “special circumstances” a beneficiary of the estate should be able to bring a claim to protect the estate and his interest in it against a wrongdoer. It goes on to say that it “may be that the claim should be constituted a derivative action…” Finally, it says (at [10]) that “the absence of a personal representative is an exceptional circumstance in which the Claimant should be entitled to bring and continue these proceedings”.

The “special circumstances” principle referred to has been known to English law since at least the eighteenth century. It has been discussed in a number of recent authorities, including Re Field [1971] 1 WLR 555, Hayim v Citibank NA [1987] AC 730, Parker-Tweedale v Dunbar Bank plc [1991] Ch 12 and Roberts v Gill [2011] 1 AC 240. I was taken to some of the cases.

The last-named decision contains the most recent authoritative restatement of the principle. At [46] Lord Collins said this:

“The special circumstances which were identified in the earliest authorities as justifying a beneficiary's action were fraud on the part of the trustee, or collusion between the trustee and the third party, or the insolvency of the trustee, but it has always been clear that these are merely examples of special circumstances, and that the underlying question is whether the circumstances are sufficiently special to make it just for the beneficiary to have the remedy…”

At the hearing Mr Krolick for the Claimant accepted that there was no case going as far as the present, where the “special circumstances” alleged to bring the principle into play consisted simply in the absence of a personal representative. Moreover, he said that in cases like the present, where the facts were heavily contested, whether there actually were “special circumstances” was something that could only be established at trial. Thus it was not possible for me to strike out the claim at this stage. I did not accept this. On a strike out application, I had (and have) generally to proceed on the basis that the respondent to the application will at trial prove the facts alleged by him or her. So I had to look at what the Claimant alleges, and see whether, if proved, they would amount to “special circumstances”.

What the Claimant alleges here is that, assuming that he is not appointed to represent the estate in this litigation, there is no personal representative of this estate able to take action against others to prevent its being “plundered”. Further, he alleges that the First Defendant is indeed “plundering” it, by means of the Power. The First Defendant accepts that there is no personal representative, but denies the further allegations against her. But, according to the arguments presented to me, the Claimant did not rely on any other circumstance than these in order to show “special circumstances”.

In my judgment this was not enough. The common law (differing fundamentally here from the civil law, which effects an automatic vesting in heirs on death) interposes an administration of the estate of the deceased between the death and the distribution to those entitled to benefit. It is similar to liquidating a company. That requires – in every case – the appointment of someone to get in assets, administer and pay debts, and then to distribute the balance. Such appointment is done by the deceased in a will, or by the court on an intestacy or where the will makes no effective appointment. The administration – including the taking of legal action to protect and gather in the assets of the estate where necessary – must be in the hands of one person, or at any rate of a small number of people working together. The personal representative is the safeguard for the beneficiaries. To allow, in every case where such a person has not been appointed, or not yet appointed, that any and every beneficiary of the estate might bring his or her own legal action to “protect” it would be a recipe for confusion, duplication of effort, infighting, lack of supervision and waste of resources.

Mr Krolick for the Claimant was very concerned to argue that there must be a way in which an estate without an administrator which was “being plundered” could be protected, and that in particular the Claimant as a beneficiary of that estate could protect his own position. I agree with him on this. There should indeed be a procedure for protecting an estate without a personal representative which is threatened with depredations. But in my judgment on this application I said that there were such procedures. One involved some sort of limited grant, though I did not in my extempore judgment spell it out. It might be a grant ad colligenda bona, as in fact was used in the case of Opanubi v Daley [2002] EWHC 1596 (Ch) (see also Williams, Mortimer and Sunnucks, Executors, Administrators and Probate, 20th edition, at para 24-47, which was placed before me).

Another procedure was described by the Court of Appeal in Ingall v Moran [1944] KB 160. It involves a beneficiary (or, although this was not described, in an appropriate case a creditor) of the estate applying for the appointment of a receiver pending the grant of letters of administration. This has the triple merit of (i) limiting the remedy to one who has a proper interest in it, at the same time (ii) limiting it to protecting the estate and not distributing or otherwise dealing with it, and also (iii) confiding the necessary administration to a neutral person acting under the direction of the court rather than to someone acting out of personal interest.

But this is not what the Claimant did. Nowhere in the papers is there an application for a limited grant or for the appointment of a receiver. There is no statement in the claim form or the amended particulars of claim that the Claimant is acting, or claiming to act, on behalf of the estate or indeed in anyone’s interest other than his own. He simply alleges (particulars of claim, para 1) that he is the son and eldest child of the deceased, and one of the beneficiaries of his estate, and that he has suffered loss through the (completed) actions of the First Defendant (particulars of claim, para 16). I return to this below.

Mr Vickery for the First Defendant also argued that, even if there were “special circumstances” such that the Claimant were able to bring a claim in his own name, the personal representatives (if any) or “the estate” of the deceased (if not) would still have to be joined: Roberts v Gill [2011] 1 AC 240, [62]. I agree, though if the “special circumstances” were established, this would not be difficult to achieve: see CPR r 19.8(2), (3), dealing with joinder of the estate as a defendant.

In the result, however, I dismissed the Claimant’s application at the hearing, and turned to consider the First Defendant’s application to strike out the claim.

The power of the court to strike out a claim is both a matter of inherent jurisdiction and contained in CPR, r 3.4. This provides, so far as relevant:

“(1)

In this rule and rule 3.5, reference to a statement of case includes reference to part of a statement of case.

(2)

The court may strike out a statement of case if it appears to the court –

(a)

that the statement of case discloses no reasonable grounds for bringing or defending the claim;

(b)

that the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings; or

(c)

that there has been a failure to comply with a rule, practice direction or court order.

(3)

When the court strikes out a statement of case it may make any consequential order it considers appropriate.

[ … ]

(5)

Paragraph (2) does not limit any other power of the court to strike out a statement of case.”

This application is on ground (a) of paragraph (2). It was put on the basis that the Claimant had no right to bring a claim in his own name to complain of wrongs done to the estate of the deceased. As I said above, it is a striking feature of this claim that it is couched entirely in personal rather than representative terms. On the face of the documents presented, the Claimant is making a claim for loss suffered by him, rather than on behalf of the estate for loss which the estate has suffered. On behalf of the Claimant, Mr Krolick (who, I should make clear, was not involved in preparing this claim or drafting any of the relevant statements of case) argued that the Claimant had a personal interest as a beneficiary to protect which he could do in proceedings, for example (where the estate was being plundered) for a quia timet injunction. He argued that this meant that the claim could not be struck out at this stage.

Mr Vickery for the First Defendant argued that to allow a putative estate beneficiary to bring a claim personally would violate the principle that no such beneficiary has a proprietary interest in estate assets until the administration is complete. From the death until that point, the estate assets vest legally and beneficially in the PR, and the estate beneficiaries have only a chose in action, a right to have the estate properly administered: see Commissioner of Stamp Duties v Livingston [1965] AC 694, at 712, 717.

I agree with Mr Vickery. Until the administration is complete, every estate asset must be available to the personal representative for administration purposes, and no-one can know whether this or that asset, or how much value, will remain available for eventual distribution to those otherwise entitled. So, until the administration is complete, the personal representative is the sole owner of the estate assets, and no estate beneficiary has any interest in any estate asset sufficient to found (a) a claim in respect of damage to or loss of such asset, or (b) a right to take possession of such asset, whether for safe-keeping or any other purpose. The claim which such a beneficiary does have in the meantime is for due administration, and lies against the personal representative. For example, a beneficiary may bring a claim against the personal representative for a devastavit.

The only case put before me which might be considered to cut across that analysis is the decision of Wyn Williams J in Caudle v LD Law Ltd [2008] EWHC 374 (QB) (which was, I should say, very properly brought to my attention by Mr Vickery). In that case the claimant and the deceased had been married, had had a child, and then divorced (acrimoniously). In the divorce proceedings the deceased had instructed the defendant, a law firm, to act for her. At the time of her death in January 2007 she owed the defendant a sum of money (about £1,600) by way of unpaid costs, for which the defendant had obtained a judgment.

After the death, the deceased’s parents consulted the defendant and supplied it with documents, with a view to their applying for letters of administration to the estate of the deceased. In March 2007 the defendant asked the claimant whether he wished to be one of the personal representatives with the other being one of the deceased’s parents, or whether he would let the parents apply on their own. His solicitors’ reply, in April 2007, asserted that he was going to apply for a grant, as guardian and for the benefit of their child, who had priority according to the rules but was still a minor. His solicitor would act as the second personal representative, required because the child was a minor.

The claimant sought the handing over to him of the papers in the defendant’s possession that would be needed for the application for a grant. By letter a week or so later the defendant asserted a lien over the papers. The claimant issued his claim in May, and it was decided by the county court in June, declaring that there was no lien, but refusing an order for delivery up of the documents sought, apparently on the basis that the claimant had neither possession nor any immediate right to possession of those papers. The claimant appealed to the High Court against the decision.

On the appeal the defendant argued that the claimant had no immediate right to possession of the documents merely by reason of being entitled to apply for letters of administration (see at [18]). The claimant argued that he did (see at [22]). Wyn Williams J (at [32]) approved the statement in Sherrin and Bonehill, The law and practice of intestate succession, 3rd ed, that

“The powers of an administrator to act before grant are exceptional and limited in effect to essential actions to preserve and protect the deceased’s estate.”

The judge went on to say of this statement that:

“No authority is provided for that proposition but, as it seems to me, it would be an extraordinary state of affairs if that was not so. If the trespasser in the example set out paragraph 24 above was not merely refusing to release the property to B but was in the process of destroying the deceased’s property it would appear extremely strange if nothing could be done, immediately, to prevent it. Mrs Mahoney accepts that B would be entitled to take effective practical action to prevent the destruction of property but yet also submits that he would not be a competent claimant should he move, immediately, for injunctive relief or an order for delivery up.”

The judge declined to accept this. He said:

“[33] It appears to me that Mrs Mahoney is forced to adopt this stance since, otherwise, she would be forced to accept that there are some circumstances in which the person who has not been granted letters of administration (but who is entitled to a grant) can not only take possession of the property of the deceased but also sue to prevent its destruction or disposal.

[34] I do not accept that the law confers the right to take immediate possession of property upon an individual but, nonetheless, says that such a right cannot be enforced by legal action in the courts of England and Wales. I can think of no principle or practical reason why that should be so and in the absence of clear authority I would not be prepared to accept that the law is such.”

It is however to be noted that the decision of the Court of Appeal in Ingall v Moran [1944] KB 160 was not cited. So the judge, sitting in the Queen’s Bench Division of the High Court, was not made aware of the Chancery procedure of a beneficiary applying for the appointment of a receiver pending grant. Counsel for the defendant had mentioned (see at [26]) the possibility of his obtaining a limited grant such as one ad litem, but that was all. Nor was there any mention of an application for a grant ad colligenda bona, which, as Mr Vickery observed, might also have served in the circumstances. (As already mentioned, it was used in another executor de son tort case not long before, Opanubi v Daley [2002] EWHC 1596 (Ch).)

The judge therefore concluded (at [36]) that:

“On the basis of the passage in Sherrin and Bonehill it is clear, in my judgment, that a person who is entitled to the grant of letters of administration has an immediate right to possession of personal property formerly owned by a deceased if it is necessary that he takes possession to safeguard the estate. As I have found, such a person also has the right to take legal action to enforce that right.”

However, applying to this proposition to the facts of the case, the judge held (at [37]) that it was not necessary for the claimant to have these documents in order to apply for letters of administration. The information he needed could be obtained in other ways. He therefore dismissed the appeal.

There are two difficulties with the statement made by the judge at [36] of his judgment. The first is that, although it represents his considered view of the law, it did not decide the case. Because the judge found facts which did not fit his statement, the decision would have been the same even if he had held the law to be the opposite. So it is arguably obiter dicta, rather than part of the ratio. The second problem is that the judge was obviously unaware of the decision in Ingall v Moran [1944] KB 160 (or of the possibility of a grant ad colligenda bona). He relied on the absence of any other way to protect estate assets from depredation before an administrator was appointed in order to justify his view of the law. But he was wrong about that absence. On the contrary, there are procedures, involving a limited grant, or the appointment of a receiver, which is on a par with the grant of an injunction (cf the Senior Courts Act 1981, s 37). So the judge’s reasoning is, with great respect, founded on an error. There is no need for the legal right which he has called into existence.

But in my judgment I do not need to decide whether I am strictly bound by the statement of the law in Caudle at [36]. This is because (as in Caudle itself) on the facts of the present case the Claimant cannot claim that it is necessary to prosecute the present claim in order to safeguard the estate assets. Mr Vickery argues that the Claimant’s claims relate to past actions of the First Defendant in relation to alleged use of the Power. And, for the future, the First Defendant has given an undertaking not to use the Power in the United Kingdom (Mr Vickery in his skeleton actually said England & Wales, but no matter), and would have given one pre-action if asked.

I agree with Mr Vickery that, so far as the claim relates to past actions, the administrator of the estate once appointed will be able to take any appropriate action. As for the future, I am not sure about the undertaking. If these proceedings are struck out (the subject of the First Defendant’s present application) on the basis that the Claimant has no title to sue, the undertaking falls away. An undertaking given pre- action or otherwise outside the litigation would be purely contractual and would not involve the sanction of contempt of court, like an injunction. But in any event I agree with Mr Vickery that these proceedings are not necessary to protect the estate assets. An application can be made for the appointment of an administrator ad colligenda bona, or a receiver pending grant, as contemplated in Ingall v Moran [1944] KB 160.

But Mr Krolick also put forward another argument. This was not foreshadowed in any skeleton argument before the hearing on 19 and 20 October 2015. Indeed, Mr Krolick developed it overnight between the first and second days of the hearing, and raised it for the first time only in oral argument on 20 October. It was that, on the facts of this case, the Claimant could maintain his claim against the First Defendant on the footing that she had constituted herself an executor de son tort. He referred to paragraphs 11 and 14 of the amended particulars of claim. In the former, the Claimant alleges:

“The First Defendant continues to parade herself as the attorney of the deceased even though he died on 8 October 2012”.

In the latter, the Claimant alleges:

“In the absence of the deceased and in the absence of registration and thus oversight of the Office of Public Guardian the First to Fourth Defendants have felt able to do as they please and have continued to deal with the estate of the deceased as they please.” He then gives an example, and continues: “The Claimant states that this is an example of the way the First Defendant through the connivance of the Second to Fourth Defendants but especially the Second Defendant have caused him loss as a result of diversion of funds which should have been distributed as dividends to himself and the estate of the deceased from which he and his siblings would have benefited.”

The concept of the executor de son tort is well established in English law. Williams, Mortimer and Sunnucks, Executors, Administrators and Probate, at para 7-01, which was cited to me, define it in these terms:

“A person not lawfully appointed executor or administrator and without title to a grant may by reason of his own intrusion upon the affairs of the deceased be treated for some purposes as having assumed the executorship… The concept is derived from the principle that a person who has assumed authority where he has none is accountable as if he had that authority.”

The Administration of Estates Act 1925, s 28, provides as follows:

“28 Liability of person fraudulently obtaining or retaining estate of deceased.

If any person, to the defrauding of creditors or without full valuable consideration, obtains, receives or holds any real or personal estate of a deceased person or effects the release of any debt or liability due to the estate of the deceased, he shall be charged as executor in his own wrong to the extent of the real and personal estate received or coming to his hands, or the debt or liability released, after deducting—

(a)

any debt for valuable consideration and without fraud due to him from the deceased person at the time of his death; and

(b)

any payment made by him which might properly be made by a personal representative.”

Mr Krolick argued that this extended (for example) to a burglar stealing estate assets. He referred me to James v Williams [2000] Ch 1, a decision of the CA. In that case A owned a house. When he died intestate in 1971 it passed to his widow B. She died also intestate, in 1972, and two of her children, C and D, continued to live there, excluding a further child, the plaintiff. When C died he purported to leave the house by will to D and her daughter, the defendant, in equal shares. When D died she left her entire estate by will to the defendant. The plaintiff issued proceedings only in 1995, more than 12 years after the death of B, claiming a one third share in the house.

The judge held that C was an executor de son tort, but was not a constructive trustee, and therefore the plaintiff’s claim was time barred. The Court of Appeal allowed the plaintiff’s appeal, holding that an executor de son tort who knew, as C did, that he was not solely entitled to the house, and that there were others entitled to share in the estate under a statutory trust on the death of B, held the property for the benefit of those others and was a constructive trustee for them. Since C was a constructive trustee, so was D and then so was the defendant.

But the Court emphasised that it was an unusual case, and that there would be many cases of executors de son tort who would not be constructive trustees. It is to be noted, however, that the court nowhere explained what was necessary for a person to become an executor de son tort. It was all about what was necessary for a person to be a constructive trustee.

I do not think that this case justifies the view that a burglar of estate assets, for example, would become even a trustee of them for those beneficially entitled, much less that he or she would become an executor de son tort. Unlike a trustee de son tort or an executor de son tort, who does something to intervene in the administration so as to assume the obligations of a trustee or executor, a burglar never intends to intervene in the administration or assume fiduciary obligations. He or she just wants to take the assets and run away. Moreover, in the James case there was a statutory trust, which had arisen on the death of the widow. Her son C knew that he was not solely entitled, and so when he took over the management of the house he could be treated as assuming the role of a trustee.

Next, Mr Krolick referred to the decision of the CA in Ayonrinde v Oyemomilara [2001] EWCA Civ 1296. I hope he will forgive me for beginning with the very last sentence in the third judgment given, that of Judge LJ:

“I hope no-one regards this case as having decided any point of principle or providing any authority for a proposition of law which is not already trite.”

That case concerned a claim by A for the revocation of letters of administration that had been granted to B in respect of the estate of C on the basis that B and C were married.

A’s claim was that the grant had been obtained by fraud. Her standing to bring the claim was based on (i) an order of the county court made after the death of C appointing A the legal representative of the deceased in proceedings relating to his assets and also as to his place of burial, and (ii) a power of attorney given to her by D, who lived abroad, and who also claimed to have been C’s wife. B defended the claim on the basis that she was indeed the widow of C, and therefore had priority in obtaining a grant. The standing of A to bring the claim was denied, and a counterclaim made that A (and another person who had since died) had constituted herself an executor de son tort.

The judge held that the county court order was made only for temporary purposes connected with the removal from the jurisdiction and burial abroad of the body of the deceased, and did not give standing to A to bring further proceedings to revoke the grant to B. He also held that the power of attorney was not wide enough in its terms to authorise the institution of the present proceedings. The Court of Appeal held that the judge was right on both points.

However, the judge had also refused an application for D to be joined as a party, on the grounds of lack of evidence, and an adjournment for 24 hours to enable the evidence to be adduced. On appeal, there was further evidence and a fresh power of attorney from D. The Court of Appeal took the view that there was clearly a substantial dispute as to which of B and D was C’s wife at the time of his death, and that everyone had known of the dispute all along. It was therefore, exceptionally, right to interfere with the judge’s decision as to granting an adjournment and joining D to the proceedings, and the appeal was allowed to that extent, and the case remitted to the High Court for trial.

Despite the single reference to the concept of executor de son tort, and the dispute over the body and assets of the deceased (both of which have been seen in the disputes between the Claimant and the First Defendant in this case), in my judgment this case does not assist Mr Krolick, and I say no more about it.

Finally in oral submissions, Mr Krolick referred me to a dictum of Lord Denning MR in the decision of the Court of Appeal in Phipps v Boardman [1965] Ch 992, at 1017- 18, as follows:

“There are many cases in the books where a person has assumed to have authority when in truth he has none. It has always been held that he is accountable just as if he had in fact the authority which he assumed. The classic instance is an executor de son tort. If a person intermeddles with the assets of an estate in such a way as to denote an assumption of the authority of an executor, he is accountable just as if he were an executor…”

But I do not read any allegation in the claim form or amended particulars of claim that the First Defendant assumed “the authority of an executor”. The claim is based on alleged misuse of the Power, which is also alleged to be void. At best therefore there is an allegation that the First Defendant assumed the authority of the donee of a valid power of attorney. I do not think this takes the argument any further forward.

In his supplemental written submissions, dated 27 October 2015, Mr Krolick makes a number of points in relation to executors de son tort. First he says that a claim should not be struck out if it alleges facts bringing the case within the doctrine, even though the actual words executor de son tort are not used. I agree with this. Parties in their statements of case plead facts which they assert to be true, not propositions of law.

Second, he says that (i) any assets which have been improperly extracted from companies owned by the deceased during his life by means of the Power must be regarded as still being owned beneficially by the donor of the Power; (ii) the First Defendant receiving such funds would hold them on trust for the deceased during his life and for his estate after his death; (iii) such funds being paid to a company owned by the First Defendant without consideration would still be held by the First Defendant, the court piercing the corporate veil.

These propositions are denied by Mr Vickery in the additional written submissions which he sent to me on 28 October 2015. This was a response to Mr Krolick’s Further Skeleton of 27 October, in which further matters were raised which had not been mentioned at the hearing. Mr Krolick had of course no objection to this course being taken.

I agree with Mr Vickery that the first proposition is unsupported by authority and in my view is not the law. Prima facie assets improperly extracted from companies by means of the Power would belong beneficially either (a) to the company concerned or (b) to the extracter but with a personal obligation to repay the value, depending on the circumstances. If a company owned an asset as trustee for the deceased, however, it might well be different: cf Shaker v Al Bedrawi [2003] Ch 350. But there is no such allegation here.

Given that the first proposition above is wrong, so is the second. It simply will not follow that the extracter of such funds would hold them on trust for the deceased or his estate. The third proposition is inconsistent with the decision of the Supreme Court in Prest v Petrodel Resources Ltd [2013] 2 AC 415, because there is no allegation in the present case of any facts that would justify the court in piercing the corporate veil in the limited circumstances in which that is possible in English law.

Thirdly, Mr Krolick says that, for the doctrine to apply,

“It is sufficient that a defendant should hold any real or personal estate of a deceased person without having given full and valuable consideration. There is no requirement that the obtaining must have occurred after the death of the deceased” (para 7).

No authority is cited expressly for this, though I think it likely to be based on s 28 of the Administration of Estates Act 1925, set out above. At all events, I do not accept it. Section 28 does not codify the doctrine of executor de son tort. It does not say anything about what an executor de son tort is, or how you become one. Instead, it extends the liability of an executor de son tort to persons who are not otherwise such executors but who receive assets of the deceased from the duly appointed administrator as part of a fraud on creditors or without paying full value for them. It re-enacted the statute 43 Eliz 1, c 8 (1601), which had been amended by the Law of Property (Amendment) Act 1924, Sch 7, para 5, before consolidation into the 1925 Act.

Williams, Mortimer and Sunnucks, para 7-03, says that the circumstances of the application of the section now extend to all cases of executors de son tort. I do not think this is necessarily the case. On the face of it, the 1925 Act (via the Law of Property (Amendment) Act 1924) merely modernises the language. The words “upon any such fraud as is aforesaid” (referring back to the preamble which set out the mischief to be remedied) in the 1601 Act have become “to the defrauding of creditors” in section 28. Although it is possible that there could be a defrauding of creditors in other ways than the one set out in the 1601 Act, the words used are still a limitation on the scope of the section. But I do not think that anything turns on that now.

As to the first sentence of Mr Krolick’s written submission, it is made clear in para 1264 of vol 103 of Halsbury’s Laws of England, 5th edition, which in an earlier edition (though in identical words) was placed before me, that

“The slightest circumstance may make a person executor de son tort if he intermeddles with the assets in such a way as to denote an assumption of the authority or an intention to exercise the functions of an executor or administrator” (emphasis supplied).

Authority is given in the footnotes for that proposition.

The same point is made in para 7-01 of Williams, Mortimer and Sunnucks, and in the dictum of Lord Denning MR cited by Mr Krolick himself, both of which I have already set out above. As I have said, a burglar does not so assume or intend. And nor does a person who takes or retains goods by title paramount, ie not in the same right as the deceased, but in one that is superior: see Williams, Mortimer and Sunnucks, para 7.11(c), and Pollard v Jackson (1994) 67 P& CR 327, CA. The basis on which a person becomes an executor de son tort is set out in the case law, not in section 28.

As to the second sentence of Mr Krolick’s third submission, in my judgment it is of the essence of the doctrine of executor de son tort that the deceased must already have died by the time of the acts complained of. If A purports to act as B’s personal representative at a time when B is still alive, A may (depending on the circumstances) engage liability to B, but absent special circumstances A engages none to those who would inherit from B on B’s death. This is because you cannot inherit anything from a living person: nemo est haeres viventis. Thus acts alleged to have been done by A during B’s lifetime cannot constitute A an executor de son tort, even if it were alleged that A (even mistakenly) intended at the time to assume that responsibility.

The allegations made against the First Defendant in the particulars of claim fall into two groups. First there are those alleged to have been committed during the deceased’s lifetime. Second, there are those not alleged to have been committed at a specific time. The first group cannot found a claim of executor de son tort, for the reasons already given. The second group cannot either, because they do not allege that they occurred (i) after the deceased’s death, nor (ii) on the assumption of the responsibility of executor by the First Defendant. Indeed, as Mr Vickery pertinently pointed out, most of the allegations in the second group are pleaded in the Defence to have taken place in the deceased’s lifetime, and no Reply has been put in by the Claimant to deny that allegation.

Accordingly, I hold that the Claimant, not being or being appointed a personal representative of the deceased, has no right, even in his claimed but disputed capacity as beneficiary of the unadministered estate of the deceased, to sue the First Defendant in respect of wrongs allegedly done to the estate assets.

It is a matter of discretion in the court as to whether to strike out a claim for lack of reasonable grounds for bringing a claim. It is after all a strong thing to drive the claimant from the judgment seat. But despite the increasingly ingenious arguments of Mr Kolick (who, I emphasise, was not responsible for advising the Claimant to bring this action or for drafting the claim in support of it) it is clear that this claim was badly thought out from the beginning. It does not matter whether the Claimant was badly advised (and, if so, by whom) or whether he was advised of the risks and nonetheless insisted on going ahead. The bitter squabbles between the parties in this and the many other legal actions which they have launched against each other in this country have had more than their fair share so far of the limited resources available in our legal system. There are other claims still to proceed. This is no time to be carrying expensive passengers.

On this basis I will strike out the claim in its entirety, as not disclosing any reasonable grounds for bringing the claim. The First Defendant’s application notice alternatively asks for summary judgment for the First Defendant, on the basis that the Claimant had no real prospect of succeeding at trial, and that there is no other compelling reason for a trial. Strictly, I do not need to deal with this alternative application. However, I will say this. On the material presently before me, but bearing in mind of course that the summary judgment jurisdiction was not the particular focus of the arguments made before me, I consider that, if I had not struck out the claim, I would have given summary judgment for the First Defendant. In these circumstances there is no need for me to deal further with the other two outstanding applications.