Davidson & Anor v Seelig & Ors

On 14 and 15 December 2015 I heard two applications in the present action, which is currently listed for trial in a window between 5 and 11 April 2016 with a time estimate of 12 days. Each application is made by the second defendant, Michael Haringman, who holds office as one of the protectors (or purported protectors) of the two settlements with which the action is concerned, the Manny and Brigitta Davidson Discretionary Settlements (“the Settlements”) which were originally established on 30 March 1967. By his first application, dated 21 July 2015, Mr Haringman asks for permission to re-amend his defence and bring a counterclaim, in the form of a draft pleading annexed to his application notice. By his second application, dated 19 November 2015, he seeks specific disclosure of certain categories of documents from the fourth, fifth and sixth defendants, who are the present trustees (“the Trustees”) of the Settlements.

The second application to a substantial extent reflects, and is predicated upon the success of, the first application, so the arguments before me were mainly concentrated on Mr Haringman’s application to re-amend his defence. I heard oral submissions from Paul Girolami QC (appearing with Francis Barlow QC and Matthew Smith) for Mr Haringman, from Alan Steinfeld QC (appearing with Giles Richardson) for the claimants, Gerald and Maxine Davidson, and from Simon Taube QC (appearing with James MacDougald) for the Trustees.

The Settlements have a very substantial combined value, in the region of £500 million. Approximately 80% of this value is represented by a portfolio of real property, and the balance consists of a portfolio of liquid investments. The settled property derives from the settlor of the first of the Settlements, Emanuel Wolfe Davidson, generally known as Manny. It is common ground that Manny has been a shrewd and very successful businessman throughout most of his adult life, and until 2013 he played (at least) a significant role in the management and administration of the property portfolio.

The claimants, to whom I will refer as Gerald and Maxine, are the only children of Manny and his wife Brigitta Davidson (“Brigitta”). Maxine was born in December 1958, and Gerald in April 1961, so they are now aged 57 and 54 respectively. Each of them also has two sons now in their twenties, Jack and Isaac Davidson in the case of Gerald, and Toby and Douglas Kay in the case of Maxine. I hope all members of the family will forgive me if, for convenience, I refer to them in this judgment by their first names only.

Most unfortunately, relations between the settlors and their children broke down, it would seem irretrievably, in 2013. The ensuing feud has attracted a good deal of publicity, some of it self-inflicted. For example, Manny is on record as having said in an interview with a Sunday newspaper that he now regrets having ever established the Settlements. Views and positions have become polarised, and the Trustees and protectors of the Settlements have found themselves caught up in the dispute. That is the regrettable background to the present proceedings, in which Gerald and Maxine (who are the principal beneficiaries under the Settlements) challenge the validity of the protectoral regime, which was first introduced by deeds of appointment in 2003. By their particulars of claim dated 11 February 2014, they seek a declaration that the 2003 appointments are void, or should be set aside; alternatively, a declaration that the appointments as protectors of the first and/or second defendants are void, or should be set aside; and in the further alternative, an order under the inherent jurisdiction of the court removing the first and second defendants as protectors. The first defendant, Roger Seelig, resigned as a protector, in circumstances which I will relate, and on 17 February 2015 a consent order was made compromising the claim for his removal. Mr Haringman is therefore the only individual protector whose removal is now sought by the claimants.

A flavour of the intemperate tone in which this battle is being waged by the claimants may be gained from the written evidence of Gerald and Maxine on the present applications. In his second statement dated 12 November 2015, Gerald describes Mr Haringman as “a puppet of my father’s”, and says he has no respect for him “and absolutely no confidence in his judgment”. Later in his statement, he says:

“9.

I wake up each day hoping that Mr Haringman will act properly and leave Maxine and me and our advisors to involve ourselves in a trustee and protector review driven by our own and our families’ best interests and untainted by our terrible feud with our parents. As Maxine has explained, the trustees have said that they will retire if that will help matters, but we have asked them to remain at least until Mr Haringman, who we regard as a puppet of our father and who has no interest in our happiness, has disengaged or been removed. Mr Haringman on the other hand clings to his purported office, now even seeking to widen these proceedings.”

For her part, Maxine refers in her statement of the same date to Mr Haringman’s “unhelpful meddling”, and describes him in disparaging terms as an inexperienced conveyancing solicitor.

The Settlements were established in 1967 upon broad discretionary trusts, with UK-resident trustees. Manny was then in his thirties (he is now in his eighties). There was an 80 year perpetuity period, and the Appointed Day was defined as three days before its expiry. The specified class of discretionary beneficiaries included (in the case of Manny’s Settlement) his children and remoter issue, their spouses, and other family members. Brigitta’s Settlement was in essentially identical terms.

By deeds of appointment dated 2 February 1976, the then trustees of each Settlement irrevocably appointed the trust fund upon accumulation and maintenance trusts for Maxine and Gerald contingently on attaining the age of 25, with one third of the fund to be held for Maxine and two thirds for Gerald. Subject thereto, the shares of Maxine and Gerald were held upon trust for them contingently on attaining the age of 50, which of course they both have. Clause 4 of each appointment contained a power of advancement, in the following terms:

“4.

Notwithstanding the trusts hereinbefore declared:-

(i)

The Trustees (being not less than two in number) may raise the whole or any part or parts of the vested contingent or presumptive share in the Trust Fund of either of the children of the Settlor who have attained the age of 25 years and pay or apply the same or transfer the same in specie to or for the advancement education or benefit of such child in such manner as the Trustees may think fit freed and discharged from the trusts hereof.”

In 1989, the Settlements were exported and Monaco-based trustees were appointed, including the present fifth and sixth defendants, Mr Ledger and Mr Groom. Since that date, the trustees have been resident in Monaco. The present third defendant, The General Trust Company S.A. (“GTC”), is a Monaco trust company of which Mr Ledger and Mr Groom are officers, as well as being individual trustees in their own right.

By deeds dated 18 February 1994 (“the 1994 Deeds”), before Maxine and Gerald had reached the age of 50, the then trustees of each Settlement exercised the powers of advancement conferred on them by the 1976 appointments for the benefit of Maxine and Gerald, declaring fresh trusts of their still contingent shares. In broad terms, the effect of each advancement was to defer their contingent entitlements to capital until the Appointed Day (23 March 2047) if they were then alive, with a life interest in the income of the share meanwhile, subject to an overriding power of appointment vested in the trustees in favour of themselves and their issue, any spouse widow or widower of themselves or their issue, or charity. The trusts were intentionally not exhaustive, to avoid any risk of absolute entitlement for capital gains tax purposes, but each deed of advancement was expressed to be irrevocable.

In 1995, an appointment was made from Manny’s Settlement constituting a separate fund for the benefit of the Settlors’ grandchildren.

On 7 April 2003, the Trustees executed deeds of appointment (“the 2003 Deeds”) supplemental to each Settlement, in exercise of the powers conferred by the 1994 Deeds. The main purpose of the appointments was to establish a protectorship regime, and to restate the beneficial trusts of the 1994 Deeds in substantially similar terms, but in certain important respects with a role for the Protector. Thus:

Schedule 2 of each 2003 Deed regulated the appointment and retirement of the Protector, defined in clause 1(e) of the deed as the person or persons for the time being holding the office of Protector. Paragraph 1 of the second schedule conferred the power of appointing the first person or persons to hold that office on the Settlor during his or her life. Paragraph 2 enabled a replacement Protector to be appointed by (in the first instance) “the continuing Protector”, and paragraph (3) likewise enabled the continuing Protector to appoint additional persons to hold that office, provided that the number of such persons should not be increased beyond three. Paragraph 6(a) then provided that:

“where two persons are occupying the office of Protector of this deed the powers conferred on the Protector by the provisions of this deed shall be exercised by such persons jointly only (and not severally) but where more than two persons are occupying such office such powers may be exercised by a majority.”

It can be seen from these provisions that the protectorship was created as a quasi-corporate entity, with between one and three members who had to act jointly if there were only two of them, but could act by a majority if there were three.

On 30 July 2004, the Settlors appointed the third defendant, Promenade Trustee Company Limited (“Promenade”), as the first protector of each Settlement. Promenade is an English-registered company controlled by the partners of Wiggin Osborne Fullerlove (“Wiggin”), who were and are the Trustees’ solicitors. Although the claimants challenge the establishment of the protectoral regime in 2003, they do not separately challenge the appointment of Promenade as the first protector, nor do they seek Promenade’s removal under the inherent jurisdiction.

By deeds dated 12 February 2013, Promenade appointed Mr Haringman as a new protector to act jointly with Promenade; and by further deeds of appointment dated 10 September 2013, Promenade and Mr Haringman jointly appointed Mr Seelig to be a third protector. That then remained the position until Mr Seelig’s resignation.

The present proceedings

I have already summarised the relief sought by the claimants in their particulars of claim. It is alleged that the appointments made by the 2003 Deeds were a fraud on the powers contained in the 1994 Deeds, in that the Trustees “were motivated principally by a desire to do as [Manny] wished, sought his approval to the proposed form of the appointments and, by them, permitted him to control the appointment of the first protector and thereby in substance to control the Trusts”: paragraph 18(2). Alternatively, it is said that the 2003 appointments were capricious and not in the interests of the beneficiaries of the trusts of the 1994 Deeds, to which the Trustees failed to give any proper consideration: paragraph 18(3). It is also alleged at the beginning of paragraph 18 that the Trustees “were influenced principally by a desire slavishly to effect [Manny’s] wishes”, and that the 1994 Deeds “were effectively made from assets belonging to Gerald and Maxine”, with the result that it was their views to which the Trustees should have had regard in 2003.

Paragraphs 20 and 21 then challenge the subsequent appointments of Mr Haringman and Mr Seelig as frauds on the powers of appointment of further protectors in the 2003 Deeds. It is again alleged that these appointments were inappropriately motivated by a slavish desire to satisfy Manny’s wishes to obtain further control over the Settlements. It is also said that both Mr Seelig and Mr Haringman were unsuitable on personal grounds to act as protectors. One of the allegations against Mr Seelig was that he had accepted valuable gifts from Manny, including £1 million described by Manny himself as a “bung” for Mr Seelig.

Paragraph 22 of the particulars of claim then seeks the removal of Mr Seelig and Mr Haringman under the inherent jurisdiction of the court, by reason of alleged misconduct on their part since Mr Seelig’s appointment. The alleged misconduct focuses on events between November 2013 and January 2014, beginning with two letters dated 18 November 2013 written by Macfarlanes LLP, acting for Mr Seelig and Mr Haringman, the first to Wiggin on behalf of the Trustees, saying that they were considering exercising their power to remove the Trustees, and the second to Promenade. In short, it is alleged that this course of conduct was again driven by a desire to do as Manny wished.

By his amended defence dated 25 June 2014, Mr Haringman said he had not participated in the decision to execute the 2003 Deeds, but had no reason to doubt the appointments were validly made. He pointed out that the beneficial class under the 1994 Deeds included not only the claimants, but also the remoter issue of the Settlors (among others). He said it was perfectly proper for the Trustees to take account of Manny’s views about the formation of a protectorate, and since the Settlors had the power of appointing trustees, it was natural that the power of appointing the first protector should be vested in them. Furthermore, the only power effectively conferred on the Settlors by the 2003 Deeds was the power to appoint the first protectors, which they had exercised by subsequently appointing Promenade, thereby extinguishing the power. No complaint was made by the claimants about the appointment of Promenade as first protector.

At this point, I need to say a little more about Mr Seelig’s position. He originally denied receipt of the alleged “bung” from Manny, and on this basis he and Mr Haringman initially filed a joint defence in which this denial was maintained. Soon afterwards, however, it became necessary for Mr Seelig to seek his own representation, and on 14 May 2014 his new solicitors, Berwin Leighton Paisner LLP, wrote to Wiggin acknowledging that Manny had in fact offered Mr Seelig a gift of £1.5 million, and he had received some lesser sums over the years since 2006 as “drawdowns on the gift”. Attached to Berwin Leighton Paisner’s letter was a copy of a further letter from Mr Ledger, dated 17 December 2006, addressed to the claimants. This letter purported to be written by Mr Ledger on behalf of GTC, and read in material part as follows:

“Sale of B L Davidson shares

Compensation

Further to our protracted discussions on the level of compensation for us in respect of the above exceptional matter namely the sale for £164 million of the Trust’s shares in B L Davidson, I am pleased that a mutually satisfactory compromise has been reached.

We have accepted that an appropriate figure for our efforts in helping to bring the transaction to a most satisfactory solution after a very tortuous 18 months period would be £1,600,000. During this time you will recall we were involved in very extensive discussions with the Trust’s taxation and legal advisors including of course Messrs Slaughter & May. You have asked me for remittance instructions for this payment.

For domestic housekeeping reasons it would be appreciated if you would be good enough to arrange for the transfer to be made to our “off balance-sheet” Foundation.

The Foundation’s details are as follows:-

The Regina Foundation

LGT Bank in Liechtenstein

Vaduz

[An IBAN number was then given]”

It has since transpired that the Regina Foundation is in fact based in Panama. Receipt of the letter, I should add, is firmly denied by the claimants.

Mr Ledger then served a witness statement dated 23 May 2014, in which he said of the letter dated 17 December 2006:

“In fact, and despite appearances, this was not a trustee fee, but a payment to a Liechtenstein Foundation, the Regina Foundation, established for Mr Seelig’s benefit. The Regina Foundation was, as I understand it, a structure through which it would be advantageous for monies to be made available to Mr Seelig.”

Mr Ledger exhibited a bank statement and internal ledger for Manny’s Settlement, which showed £1.6 million entering and then leaving the bank account, described in the ledger as “Fee to Ian Ledger”. The payment was debited to an income account holding undistributed income for the claimants, whose distributed income was at that date managed by Manny on their behalf under powers of attorney. Mr Ledger’s evidence is that the payment was not a fee to him, although described as such in the books of the trust, but rather “enured in the Regina Foundation for the benefit of Mr Seelig”.

In the light of these developments, Mr Seelig’s position as a protector was clearly untenable, and he resigned on 19 November 2014. As I have already said, the claim for his removal has been compromised.

Returning to Mr Haringman’s amended defence, he admitted that it would be inappropriate for Mr Seelig to remain as a protector, but denied that there had been any impropriety in his original appointment. He also made a like denial in relation to his own appointment, while admitting that he was a long standing friend of the Settlors, and also a warden of the Synagogue to which the Settlors had made generous gifts. He said he was a solicitor of over 40 years’ experience, had acted as trustee of a number of trusts, and had considerable experience of the management of trust investments. Finally, Mr Haringman took issue with the matters relied upon by the claimants in support of their application for his removal under the inherent jurisdiction, setting out his case at considerable length in paragraphs 30 to 41 of his amended defence, and seeking to place in context the correspondence beginning with Macfarlanes’ letters of 18 November 2013 to Wiggin and Promenade. He said those letters had been written “after the unceremonious dismissal” of Manny from his role in the management of the trusts, which gave rise to serious concerns that the Trustees were acting at the behest of the claimants.

The Trustees, in their defence dated 3 April 2014, denied any impropriety in the making of the 2003 appointments and the creation of the protectorship regime. The Trustees played no part in the subsequent appointments of Mr Haringman and Mr Seelig as protectors, so in relation to that part of the claim they adopted a neutral stance, saying they would abide by the decision of the court.

In their reply to Mr Haringman’s amended defence, dated 11 July 2014, the claimants alleged (among other things) that Mr Haringman had entered into secret funding arrangements with Manny. They also said they had trust and confidence in the Trustees, even though they considered the 2003 appointments to have been defective. Although the details have not been disclosed, it seems reasonably clear that Mr Haringman’s defence has indeed been funded, in one way or another, by Manny, and that this will continue to be the case. By a letter dated 11 December 2015, Macfarlanes confirmed “in the interests of transparency” that the Settlors had recently signed a further written indemnity in Mr Haringman’s favour in relation to his legal costs.

From this review of the pleadings in their current form, it can be seen that they raise three main issues:

In paragraphs 94 to 97 of his witness statement signed and served on 24 April 2015, Mr Haringman briefly explained his position in relation to the third issue:

“94.

As I have explained, I do not believe that I have done anything that disqualifies me from continuing to act as a protector of the Trusts. Equally, however, I do not have any desire to continue to act as a protector in the face of the hostility that Gerald and Maxine have shown to me. I hope that it will be possible to resolve this dispute and put the Trusts in an appropriate state so that I can resign without the need for these proceedings to go before the Court.

95.

If that does not prove possible, the question of my removal, and any conditions attached, will be a matter for the Court. I do not wish to trespass on the Court’s discretion as to the form of any order that it may make. However, I am concerned that if I am simply removed from office this may leave the Trusts in an inappropriate state.

96.

If I am simply removed as a protector, the current trustees will continue in office. For the reasons set out above I am concerned that they may not be appropriate persons to act as trustees of the Trusts. In addition, the only protector in office will be Promenade, which is controlled by the trustees’ legal advisors. Promenade’s inability to exercise independent oversight over the trustees as a result of the conflicts of interest between it, the trustees and [Wiggin] was confirmed by its letter of 22 April 2015 (see paragraphs 64 to 67 above).

97.

As a result, I respectfully submit that, if the Court does see fit to remove me as a protector, it may wish to consider what other changes (if any) should also be made to the trusteeship and/or the protectorate in order to protect all the beneficiaries, and future beneficiaries, of the Trusts.”

In the light of this evidence, when Macfarlanes prepared a draft list of issues in advance of the case management conference (“CMC”) listed in June 2015, they formulated Issue 3 in these terms:

“Whether … [Mr Haringman] should be removed by the Court as Protector of the Trusts by reason of his conduct since taking office and in particular since Macfarlanes’ letters … dated 18 November 2013 and events thereafter and (if so) on what terms, if any, (whether as to the future of the protectorate and/or the trusteeships of the Trusts or otherwise) [Mr Haringman] should be removed.”

On 18 June 2015, this formulation was agreed by the claimants, but on 19 June the Trustees objected to it on the basis that Mr Haringman had not pleaded any positive case that the Trustees (or some of them) should be removed. They said that, if they had been aware this was Mr Haringman’s case, they would have submitted evidence to deal with it, as no doubt would the claimants. There had been no indication of Mr Haringman’s intention to raise this issue until service of his witness statement. The Trustees therefore refused to agree to a list of issues which included a reference to the change of composition of the trusteeship. If that was to be part of Mr Haringman’s case, then it should be properly pleaded, and the claimants and the Trustees could respond accordingly.

By a letter from their solicitors dated 22 June 2015, the claimants then changed their position. They said that in the absence of any pleaded case by Mr Haringman asserting any position as to the identity of the trustees or other aspects of the trusteeships, the words “and/or the trusteeships” should be removed from the formulation of Issue 3.

At the CMC on 23 June 2015, leading counsel for Mr Haringman (Francis Barlow QC) submitted that, if the court decided to remove Mr Haringman from office, the court would inevitably be seised at trial of the question of the terms on which he should be required to step down, including the future of the protectorate and/or the trusteeship. It was said that this followed from the invocation by the claimants of the inherent jurisdiction. Without determining the question, Deputy Master Lloyd expressed the view that Mr Haringman’s position should be set out in an amendment, and gave directions that, if he wished to re-amend, such an application should be made by 21 July 2015. On that date, the amendment application now before me was duly issued.

The proposed re-amendments to Mr Haringman’s defence are extensive, running from paragraphs 42 to 55, all of which are entirely new, and covering some eight pages. The introductory paragraphs read as follows:

“42.

The 2^nd Defendant will contend that on the grounds set out below the current administration of the Trusts is unsatisfactory and that the Court will need to consider as part of the issues raised in these proceedings whether and, if so what, orders for the future good administration of the Trusts should be made. The 2^nd Defendant will contend that the future good administration of the Trusts requires all of the following:

(a)

the Trustees be removed as trustees of the Trusts;

(b)

an offshore trust company be appointed as trustee of each of the Trusts in their place;

(c)

Promenade be removed as a protector of the Trusts;

(d)

two individuals be appointed as protectors of each of the Trusts;

(e)

the Trustees produce to the protectors trust accounts, minutes of meetings and such other documents and information as the protectors may reasonably require in order to perform their functions as protectors;

(f)

the powers of Mr and Mrs Davidson to appoint trustees of the Trusts be treated as no longer exercisable.

43.

The 2^nd Defendant has no wish to remain a protector of the Trusts but is unwilling to resign as protector unless

(a)

the Court has had the opportunity of considering whether, and if so what, orders should be made for the future good administration of the Trusts; or

(b)

satisfactory arrangements have been made in the meantime for the future good administration of the Trusts on the lines set out in paragraph 42 above.

44.

The 2^nd Defendant will further contend that even if, contrary to his contentions, it be held that there are grounds for his removal from office, he should not be removed or his removal should not take effect without the Court considering whether, and if so what, other orders should be made for the future good administration of the Trusts or without satisfactory arrangements for the future administration of the Trusts on the lines set out in paragraph 42 above having been put in place in the meantime.”

These contentions are then fleshed out in the following paragraphs, under the headings Removal of the Trustees (sub-paragraphs 45(a) to (h)), Removal of Promenade (paragraphs 46 to 51), Provision of Information (paragraph 52), Removal of Manny and Brigitta Davidson’s power to appoint new trustees (paragraph 53), and Appointment of new Trustees and Protectors (paragraph 54). There is then a counterclaim in paragraph 55, which repeats the re-amended defence and seeks corresponding relief, including:

The alleged grounds for removal of the Trustees in paragraph 45 are in summary as follows:

The alleged grounds for the removal of Promenade as a protector are, in short, that there was a conflict of interest between Promenade and the Trustees, caused by the multiple roles of Mark Payne (a) as a director of the corporate directors of Promenade, and Promenade’s representative as protector of the Settlements, and (b) as the Trustees’ solicitor, and as the former adviser to the Settlors. It should be noted, however, that on 2 December 2015 Mr Payne ceased to be a member of Wiggin, for reasons which have not been explained, and on 3 December he resigned as a director of Promenade.

In relation to the proposed removal of Manny and Brigitta’s powers to appoint new trustees, it is merely alleged that, once new trustees and protectors have been appointed by the court, “the exercise of the powers to appoint new trustees of the Trusts at present vested in Mr and Mrs Davidson becomes unnecessary and their future exercise would be inappropriate”.

With regard to the proposed appointment of new trustees and protectors, Mr Haringman’s proposal is that the court should appoint one new offshore trust company as the sole trustee and two new individual protectors. He names three willing candidates for the former role, namely Rhone Trustees, Stonehage and Vistra (Jersey) Limited. His proposed new protectors are Basil P Zirinis of Sullivan & Cromwell LLP, and Richard Turnor of Maurice Turnor Gardner LLP.

In a letter to Macfarlanes dated 28 July 2015, the claimants’ solicitors indicated a heavily qualified acceptance of the proposed amendments. The main qualifications were that no further disclosure, witness evidence or expert evidence would be required, that there would be no increase in the time estimate for the trial, and that all other parties also agreed. They added:

“For the avoidance of doubt, our clients consider the counterclaim wholly without merit even if [Mr Haringman] had standing to bring it, which he does not.”

On 3 August 2015, Wiggin wrote to Macfarlanes opposing the application on behalf of the Trustees. The grounds of opposition, each of which was set out at some length in the letter, were in summary as follows:

By a further letter from their solicitors dated 6 August 2015, the claimants aligned their position with that of the Trustees. Arrangements were then made for the application to be listed before a judge, but no steps were taken to expedite the hearing, which was fixed to take place in the last week of the Michaelmas term.

It is well known that late applications to amend attract a much stricter approach by the court, particularly if the result of granting permission to amend would be to lose or jeopardise the trial date. I therefore find it convenient to begin by considering whether the proposed amendments fall into this category. The question has to be judged, in my view, at the time when the application was heard (on 14 and 15 December 2015), not when the application was issued. It also needs to be borne in mind that, although the writing of this judgment has regrettably been delayed for far longer than I intended, the earliest date when a judgment might realistically have been expected was shortly after the beginning of the new term in mid-January 2016, less than three months before the trial window.

The principles which the court should apply when faced with very late applications to amend have recently been helpfully distilled by Carr J in Quah Su-Ling v Goldman Sachs International [2015] EWHC 759 (Comm), to which counsel for the claimants referred me. After listing the relevant authorities at [37], including the decisions of the Court of Appeal in Swain-Mason v Mills & Reeve [2011] EWCA Civ 14, [2011] 1 WLR 2735 and Hague Plant Ltd v Hague [2014] EWCA Civ 1609, Carr J continued as follows:

“38.

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

(a)

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

(b)

where a very late application to amend is made the correct approach is not that the amendments ought, in general, to be allowed so that the real dispute between the parties can be adjudicated upon. Rather, a heavy burden lies on a party seeking a very late amendment to show the strength of the new case and why justice to him, his opponents and other court users requires him to be able to pursue it. The risk to a trial date may mean that the lateness of the application to amend will of itself cause the balance to be loaded heavily against the grant of permission;

(c)

a very late amendment is one made when the trial date has been fixed and where permitting the amendments would cause the trial date to be lost. Parties and the court have a legitimate expectation that trial fixtures will be kept;

(d)

lateness is not an absolute, but a relative concept. It depends on a review of the nature of the proposed amendment, the quality of the explanation for its timing, and a fair appreciation of the consequences in terms of work wasted and consequential work to be done;

(e)

gone are the days when it was sufficient for the amending party to argue that no prejudice had been suffered, save as to costs. In the modern era it is more readily recognised that the payment of costs may not be adequate compensation;

(f)

it is incumbent on a party seeking the indulgence of the court to be allowed to raise a late claim to provide a good explanation for the delay;

(g)

a much stricter view is taken nowadays of non-compliance with the Civil Procedure Rules and directions of the Court … ”

In Swain-Mason, the application to amend was made at the start of the trial, and so at a much later stage than the application with which I am concerned. Nevertheless, the principles stated by Lloyd LJ in his judgment (with which Elias and Patten LJJ agreed) are of general application to very late amendments. I draw attention in particular to what Lloyd LJ said at [72] to [73]:

“72.

As the court said [in the Worldwide case, [1998] CA Transcript No. 1835], it is always a question of striking a balance. I would not accept that the court in that case sought to lay down an inflexible rule that a very late amendment to plead a new case, not resulting from some late disclosure or new evidence, can only be justified on the basis that the existing case cannot succeed and the new case is the only arguable way of putting forward the claim. That would be too dogmatic an approach to a question which is always one of balancing the relevant factors. However, I do accept that the court is and should be less ready to allow a very late amendment than it used to be in former times, and that a heavy onus lies on a party seeking to make a very late amendment to justify it, as regards his own position, that of the other parties to the litigation, and that of other litigants in other cases before the court.

73.

A point which also seems to me to be highly pertinent is that, if a very late amendment is to be made, it is a matter of obligation on the party amending to put forward an amended text which itself satisfies to the full the requirements of proper pleading. It should not be acceptable for the party to say that deficiencies in the pleading can be made good from the evidence to be adduced in due course, or by way of further information if requested, or as volunteered without any request. The opponent must know from the moment that the amendment is made what is the amended case that he has to meet, with as much clarity and detail as he is entitled to under the rules.”

It is also worth noting what Briggs LJ (with whom Christopher Clarke and Sharp LJJ agreed) said about lateness being a relative concept in the Hague case, at [33]:

“Lateness is not an absolute but a relative concept. As Mr Randall put it, a tightly focused, properly explained and fully particularised short amendment in August may not be too late, whereas a lengthy, ill-defined, unfocused and unexplained amendment proffered in the previous March may be too late. It all depends upon a careful review of the nature of the proposed amendment, the quality of the explanation for its timing, and a fair appreciation of its consequences in terms of work wasted and consequential work to be done.”

Hague was a case of late, rather than very late, amendments, because no trial date had yet been fixed when the application was considered by the judge, although the litigation already had a long and tangled history. I certainly do not read the observations of Briggs LJ as casting any doubt on the approach to be adopted to very late amendments, of which he said at [32] that “the risk to a trial date may mean that the lateness of the application to amend will of itself cause the balance to be heavily loaded against the grant of permission”.

In the light of these principles, counsel for the Trustees and the claimants submitted, and I would accept, that the proposed amendments must be characterised as very late. I am satisfied there is no realistic way in which the trial date could have been held, even if permission to amend had been granted at the conclusion of the hearing on 15 December 2015. The amendments raise significant new issues about the present, past and future administration of the trusts, including in particular the allegations of poor judgment and lack of independence on the part of the Trustees in relation to Manny’s removal from his previous role in the administration of the trusts, and the allegations of subsequent mismanagement and failure to obtain proper professional advice by the Trustees in relation to the £400 million property portfolio. Furthermore, the allegations pleaded in paragraph 45 of the draft re-amended defence are in crucial respects scanty and unparticularised, as Mr Taube QC convincingly showed in his oral submissions. For example, what factors are relied upon as showing “poor judgment” on the part of the Trustees, or that they acted “at the behest of” the claimants? The complaints of mismanagement of the property portfolio appear to be based on little more than the refusal of the Trustees to provide detailed information to Mr Haringman, with next to nothing in the way of particularity, and no apparent recognition of the fact that an obvious explanation for the Trustees’ conduct may have been that Mr Haringman’s role as protector gave him no right to interfere in matters of investment and asset management, combined with a probably justified apprehension that any information supplied to him would be passed straight back to Manny.

In these circumstances, it seems clear to me that much fuller particularisation would be needed before this central part of the proposed re-amendments could begin to satisfy the stringent criteria laid down by the Court of Appeal in Swain-Mason at [73]. As it is, the Trustees complain with justification that they are now being asked to face what would, in effect, be an entirely new cross-application for their removal, which previously formed no part of either the claim or Mr Haringman’s defence. Nor has Mr Haringman provided any explanation, let alone an adequate explanation, of why he left it so late to raise these issues. His contention that the future of the trusteeship was necessarily engaged by the claimants’ reliance on the inherent jurisdiction to seek his removal, even assuming it to be a valid contention, should have been obvious to him from soon after service of the particulars of claim in February 2014, but it surfaced for the first time in his witness statement and the run-up to the CMC in June 2015, over a year later. Similarly, I can see no good reason why Mr Haringman’s attack on the Trustees’ management of the property portfolio, or their conduct in dispensing with Manny’s services in 2013, could not have been mounted at a much earlier stage if Mr Haringman considered it relevant to his defence.

Furthermore, even if the allegations against the Trustees were to be formulated with the necessary clarity and particularity, there would then have to be an adequate opportunity for the Trustees, Promenade and the claimants to respond, and substantial further disclosure and witness evidence would be necessary, possibly including expert evidence on property portfolio management. There is no way in which all this could have been done in the three months leading up to the trial, at any rate without imposing wholly unreasonable burdens on parties who should be left free to complete their preparations for trial in an orderly fashion.

Nor is it only the position of the Trustees which has to be considered. The proposals for removal of Promenade as a protector would involve a detailed review of the multiple roles of Mr Payne, and Promenade itself might need to reconsider its position in the litigation. Moreover, the pleaded allegations relating to Promenade are again very short on particularity, and do not grapple with the obvious point that any conflict of interest between Promenade and the Trustees was inherent from the outset in the appointment of Promenade by the Settlors, and must therefore have been thought acceptable by the Settlors.

In a similar way, the proposal to remove the Settlors’ powers to appoint new trustees is plainly a matter of immediate concern to both of them. The Settlors are represented by Clifford Chance, who on 9 December 2015 wrote to the solicitors for the other parties setting out their clients’ position. The letter said that the application to amend raised two issues upon which the views of Manny and Brigitta were relevant, and in relation to which they ought to be entitled to be heard if permission to amend were granted, namely (a) the replacement of the existing Trustees and the appointment of a new trustee or trustees, and (b) the removal of their powers as Settlors to appoint trustees under the 2003 Deeds. These views were then elaborated, and the letter ended by saying that, if it were necessary for the court to review or consider removing their powers of appointment, they would wish to have an opportunity to respond and meet any criticisms which had been made of them. If they were to be joined as parties, confirmation was given that they were able and willing to comply with any reasonable deadline for the submission of evidence, once they had had the opportunity to consider the materials filed in the proceedings. It was said this would ensure that the existing trial date could safely be maintained. I accept that this may have been a realistic ambition if the joinder of the Settlors were the only new issue raised by the amendments; but in view of all the other complications which I have mentioned, this is to my mind yet a further reason for concluding that the trial date could not have been maintained if the amendments were allowed.

It follows, therefore, that the amendments are properly to be regarded as very late, with the consequence that this factor alone may well strongly incline the court against granting permission for them to be made.

I move on to consider the objections to the amendments on the grounds of Mr Haringman’s alleged lack of standing and/or the absence of any jurisdiction of the court to grant relief which he seeks. These arguments are designed to show that the amendments are misconceived in law and have no reasonable prospect of success, with the result that they should be disallowed for that reason alone, quite apart from their lateness.

It is well established that the court will not grant permission to amend unless it is satisfied that the amended claims or defences have a real, as opposed to a fanciful, prospect of success. As Lewison J said in Fattal and Others v Walbrook Trustees (Jersey) Ltd and Others [2010] EWHC 2767 (Ch) at [56]:

“It would obviously be pointless to allow an amendment only to have the amended claim dismissed summarily on the ground that it has no real prospect of success.”

Moreover, the question of lateness cannot be wholly divorced from the evaluation of prospects of success. In the same case, Lewison J cited at [59] the following observations of Rix LJ in Savings & Investment Bank Ltd v Fincken [2003] EWCA Civ 1630, [2004] 1 WLR 667, at [76]:

“Ms Gloster submits that it is enough that these amendments have some prospect of success. That may be a suitable test where an amendment comes at a reasonably early stage of proceedings. After all, if any pleading whether by amendment or not, cannot meet the test of some real prospect of success, it is in danger of being struck out. In my judgment, however, the proper rule or guideline calls for a sliding scale: the later the amendment, the more it may require to commend it.”

Counsel for the claimants and the Trustees submit that the amendments need to be considered in the context of general principles which apply to the office and role of the Protector under the Settlements. There are currently two protectors, Promenade and Mr Haringman. The terms of their joint office are defined by the protectorship regime set out in the 2003 Deeds. As I have already pointed out, where there are two protectors they have to act jointly: neither has power to act alone, subject to limited exceptions (such as lack of capacity) which are for present purposes irrelevant.

Assuming that the protectorship regime was validly introduced, the protectors have four principal functions to perform in relation to the administration of the trusts. First, they have power to give or withhold consent to any exercise by the Trustees of their beneficial powers of appointment, or revocation of earlier appointments, from time to time. Secondly, they have power to remove any trustee from office, with or without cause, provided that there will still remain a minimum number of trustees. Thirdly, they have a contingent power to appoint new trustees which will be exercisable only after the death or incapacity of both Settlors. Finally, the protectors may together appoint new protectors. These powers are fiduciary, and they must be exercised in the interests of the beneficiaries. The protectors do not, however, have a general power or duty to supervise the administration of the Settlements, and they may only apply to the court for relief which relates to the proper exercise of their own powers.

I would provisionally accept these submissions, which appear to me firmly based on general principles of trust law and to reflect the limited nature of the powers conferred on the Protector by the 2003 Deeds. In the light of these principles, I can now examine the main forms of relief sought by Mr Haringman.

Removal and appointment of trustees

Mr Haringman seeks the removal by the court of all the present Trustees, and the appointment by the court of an offshore trust company as sole new trustee in their place. The proposal is made by Mr Haringman alone, without the concurrence of his fellow protector Promenade. For that reason alone, he has no standing qua protector to seek this relief; and even if he and Promenade were acting together, they would currently have no power to appoint new trustees while the Settlors are living and have capacity. Nor can he rely on the statutory power of appointment in section 41 of the Trustee Act 1925, because section 58 of the Act expressly provides that:

“(1)

An order under this Act for the appointment of a new trustee or concerning any interest in land, stock, or thing in action subject to a trust, may be made on the application of any person beneficially interested in the land, stock, or thing in action, whether under disability or not, or on the application of any person duly appointed trustee thereof.”

Mr Taube submits, and I agree, that it is implicit in this subsection that nobody other than a trustee or beneficiary has standing to seek the appointment of new trustees under the 1925 Act. Furthermore, since the protectors currently have no power to appoint new trustees of the Settlements, they would have no standing (even acting together) to seek directions or surrender their discretion to the court.

The protectors do, of course, have a joint power to remove trustees, and acting together they could no doubt surrender the exercise of this power to the court, or seek the court’s directions as to its exercise. That, however, is not the current position. Far from acting jointly with Promenade, Mr Haringman is actively seeking Promenade’s removal as a protector. Furthermore, I cannot ignore the fact that all of the current beneficiaries, who would undoubtedly have standing to apply to the court for removal of the Trustees, have expressed no wish to do so. In their pleadings and evidence, the claimants make it clear that they have confidence in the Trustees; and their sons, having been offered and taken independent legal advice from Payne Hicks Beach, support their parents’ position in the proceedings. This is recorded in letters from Payne Hicks Beach to the claimants’ solicitors dated 8 December 2015. Since all of the living beneficiaries are content with the trusteeship, it seems to me fanciful to suppose that the court would be willing to remove the Trustees on the application of the protectors, even if they were acting jointly.

The position might conceivably be different if there were compelling evidence which suggested that the Trustees were guilty of misconduct which might jeopardise the interests of possible future beneficiaries, or of charity (which is one of the objects of the Trustees’ overriding powers of appointment). But in my judgment the existing evidence comes nowhere near satisfying a test of this nature. The evidence relating to alleged mismanagement of the property portfolio seems to me entirely lacking in substance, as it stands, and it would in my view be quite wrong to allow the allegation to proceed to trial merely in the hope that something might turn up on disclosure or in oral evidence. Indeed, the undisputed evidence is that the value of the combined trust funds has grown from approximately £446 million in 2014 to about £514 million in April 2015, an increase of around 15% over one year.

Mr Haringman’s other principal complaint against the Trustees relates to the £1.6 million bung payment. The full facts in relation to this remain obscure, but the episode is (I accept) on the face of it one which gives rise to serious concerns. On the available evidence, however, the only beneficiaries potentially prejudiced by it were the claimants, because the £1.6 million was paid out of income to which they would otherwise have been indefeasibly entitled. The claimants do not wish to pursue the matter, Mr Seelig has resigned as a protector, Mr Ledger (who is over 70) has stated his willingness to retire as a trustee, and Mr Groom has said in evidence that he was not involved in the transaction and had no knowledge of it at the time. In these circumstances, it is unclear to me what legitimate interest Mr Haringman has in making an issue of these events which took place some nine years ago.

Removal and appointment of new protectors

Mr Haringman seeks an order appointing new protectors in place of Promenade. In my judgment, however, this part of his case suffers from the same fundamental defects as his attempt to have the Trustees removed. He has no standing, as a single protector, to seek the removal of his co-protector. By contrast, the beneficiaries clearly do have standing to seek Promenade’s removal, and this would in practice be achieved if the claimants’ challenge to the validity of the entire protectorship regime were to succeed. To the extent that Mr Haringman seeks the appointment of new protectors, I accept the Trustees’ submission that he cannot unilaterally seek directions or surrender his jointly held discretion without the approval of Promenade, and the position is therefore the same as with the removal of trustees.

There is, in any event, an air of unreality about this part of Mr Haringman’s case. Promenade has made it clear that it is, in principle, prepared to resign, and the parties appear to be agreed on the identity of at least one new protector. Mr Haringman’s proposal of Mr Basil Zirinis is acceptable to the claimants, and the only disagreement appears to be about the identity of the second new protector. The claimants propose Baroness Shackleton, who is a partner of Payne Hicks Beach, but Mr Haringman expresses doubts whether she has sufficient expertise in the field of trusts. The fact that the claimants have met, and have confidence in, Baroness Shackleton appears to cut no ice with him, any more than her documented experience of trusteeships in the public domain (she is, for example, a trustee of HRH Prince William’s and HRH Prince Harry’s personal charities).

Provision of information

There is little, if any, existing authority on the rights of joint protectors to obtain information and documents from the trustees of their settlements, and I accept this is an area where the law may be expected to develop. Nevertheless, Mr Haringman still faces the fundamental problem that he has no obvious right to require information without the concurrence of Promenade, and until his own status as a protector has been determined it is in my view entirely understandable that the Trustees should be very cautious in responding to such requests, given the closeness of his links with the Settlors. It seems to me that the question of provision of information to the protectors will be far more appropriately addressed once Mr Haringman’s own status as a protector has been determined. As matters stand, the Trustees are naturally reluctant to provide Mr Haringman with any information when his standing as a protector is under challenge, and it may turn out that he should be treated as a complete stranger to the trusts.

Removal of the Settlors’ powers of appointment

Here again, Mr Haringman in my judgment faces insuperable problems of standing. The proposed removal of the Settlors’ powers of appointment of new trustees would not fall within the scope of any of the limited powers conferred on the protectors, even if they were acting jointly. Furthermore, the court has no inherent jurisdiction to vary the terms of the 2003 Deeds: see Chapman v Chapman [1954] AC 429 at 444 to 446 per Lord Simonds LC. Nor is it open to Mr Haringman to rely on section 57(1) of the Trustee Act 1925, as he purports to do in his counterclaim, because section 57(3) provides that:

“An application to the court under this section may be made by the trustees, or by any of them, or by any person beneficially interested under the trust.”

Mr Haringman is neither a trustee nor a beneficiary, so he has no standing to make an application under section 57.

Having now reviewed the main areas of relief sought by Mr Haringman, I conclude that he either lacks standing to bring the relevant claims or (in relation to the provision of information) that the question is unsuitable for determination in the forthcoming trial and should be dealt with, if at all, at a later stage when his status as a protector has been confirmed. It follows, in my judgment, that Mr Haringman’s proposed counterclaim offers no reasonable prospects of success and permission to bring it should therefore be refused.

In relation to the proposed re-amendments to Mr Haringman’s defence, it remains to consider the argument that he should be permitted to rely on the new matters pleaded because they are all potentially relevant to any exercise by the court of its inherent jurisdiction to remove him from office. The short answer to this contention, in my view, is that in mid-December 2015 it was far too late for Mr Haringman to raise these new arguments by way of defence, in the context of a trial fixed to begin in early April 2016. At this point, the very late nature of the amendments, and the lack of any convincing material to support them, combine to produce the clear conclusion that permission to make them should also be refused.

I am fortified in reaching this conclusion by the fact that, as all parties agree, a full review of the trusteeship and the protectorate is needed, and the main, if not only, obstacle to this being achieved by agreement is the stance now adopted by Mr Haringman. The immediate priority, therefore, is for his status as a protector to be resolved by the court, and this will be the focus of the trial which is now due to start next month. It would be most unfortunate if the imminent resolution of that question were to be delayed by giving permission to Mr Haringman to raise matters which, if his status is confirmed, he will anyway be free to revert to in the future. If, on the other hand, the true position is that he has never been validly appointed, and the protectorship regime as a whole is either void or voidable, the sooner everybody knows that to be the case the better.

A more difficult question is what should happen if the court determines that Mr Haringman was validly appointed, under a valid protectorship regime, and then has to consider whether he should be removed from office under the inherent jurisdiction (i.e. the present Issue 3). As matters stand, the court will be confined to consideration of this question on the pleadings in their current form, whereas it may take the view, having heard the evidence, that a broader consideration of the question would be desirable, possibly extending to some (or even all) of the matters that Mr Haringman now wishes to raise by way of amendment. Although none of the parties had applied for this, I did during the hearing float the possibility of directing a split trial, so that only Issues 1 and 2 would be determined at the forthcoming hearing in April, and Issue 3 would be postponed for future consideration, together with a wider review of the trusteeship and protectorate, if Mr Haringman’s status as a protector were upheld.

In his submissions in reply, Mr Girolami QC submitted that this would indeed be the appropriate course if I were minded to grant permission to re-amend Mr Haringman’s defence. I can see why this approach might have tactical attractions for Mr Haringman, but on reflection I think it is a bad idea. The parties have pleaded their cases and prepared for trial on the footing that all three issues will be determined; and, as I have already said, there is in my view a pressing need for Mr Haringman’s status as protector to be resolved. It would therefore be unsatisfactory if the possibility of removing him under the inherent jurisdiction were removed from the agenda for the trial next month. Furthermore, for the reasons which I have given, I am not satisfied that his proposed amendments have any realistic prospects of success. The better course, therefore, is to permit the trial to proceed in its current format, while recognising the possibility that the trial judge, having heard all the evidence and the parties’ submissions, may conclude that the question of Mr Haringman’s removal should be postponed. As matters stand, this seems to me an unlikely outcome; but I would not wish in any way to tie the hands of the trial judge in deciding how to deal with the issues.

I also see much force in the simple point made by counsel for the Trustees and counsel for the claimants alike, that, until the court has confirmed Mr Haringman’s standing to act, there would be no justification for having a trial of the issues raised by his re-amended defence, together with all the expensive and time-consuming preparation that this would entail.

For all these reasons, Mr Haringman’s application for permission to re-amend his defence and bring a counterclaim will be dismissed.

In view of my decision on the re-amendment application, it seems to me that the specific disclosure application largely falls away. Most of the specific disclosure sought relates to matters of trust administration, which are not currently in issue. Disclosure is also sought of documents and correspondence relating to the payment of £1.6 million to the Regina Foundation, but Mr Groom has already stated in his evidence that “the Trustees have now disclosed everything they have which is relevant and disclosable on this question”. It is therefore not clear to me what further disclosure the Trustees might be able to give on this issue, which is anyway of little more than peripheral relevance to the currently pleaded issues.

If there are still any outstanding questions relating to disclosure, they should be raised at the pre-trial review which I understand is now due to take place on Friday, 18 March 2016.