St Clair v King & Anor

There are two matters before the court. The first is the Claimant’s appeal (permission to appeal having been granted by Mr Justice Newey on 18 July 2017) against the decision of Master Price given on 18 January 2017 pursuant to which the Master struck out the Claimant’s claim in its entirety with costs to be assessed on an indemnity basis. The second is the Claimant’s application to amend the claim form and particulars of claim. The two matters are closely connected since the Claimant relies on her application to amend as part of her grounds of appeal.

The Claimant appeared before the Master in person and has been represented on this appeal by Mr Stephen Acton. The Defendants were represented both before the Master and on this appeal by Miss Emma Hargreaves.

The Claimant is the step-daughter of Jean Lech who died on 12 January 2012 (“the Deceased”). The Deceased was the third wife of the Claimant’s father (“Mr Lech”) who died on 27 October 2008. The Defendants are the named executors under the Deceased’s will dated 20 May 2009 (“the May 2009 will”).

The Claimant and her adult daughter Carmen were the principal beneficiaries of the Deceased’s previous wills made in 2006 and 2007 prior to the death of Mr Lech. By the May 2009 will and a previous will made in April 2009 (together “the 2009 wills”), both wills being made after Mr Lech’s death, the Deceased disinherited the Claimant and her daughter and replaced them with the First Defendant as the named beneficiary of the residuary estate and the Second Defendant as legatee of a £10,000 bequest. The First Defendant is the son of the Deceased’s brother. The Second Defendant was a friend of the Deceased as well as her former carer. The Claimant’s case is that all or most of the assets in the Deceased’s estate derived from Mr Lech, gifted to the Deceased before his death or in his last will under which the Deceased was his principal beneficiary.

The claim form was issued on 18 February 2016 and disputed the validity of the Deceased’s will on what were said to be seven interconnecting grounds, namely, (1) breach of trust, (2) what was called promissory estoppel but was intended to allege proprietary estoppel, (3) undue influence, (4) testamentary incapacity, (5) solicitor’s negligence, (6) want of knowledge and approval and (7) fraud. The claim form was accompanied by particulars of claim settled by the Claimant herself.

On 22 November 2016, the Claimant sought permission to amend her particulars of claim. The draft amendment made revisions only to the breach of trust claim. It was this version of the particulars of claim that was considered and struck out by the Master at the hearing on 18 January 2017.

In the Claimant’s revised grounds of appeal dated 4 May 2017, she accepts that the Master was right to strike out the claims alleging breach of trust, proprietary estoppel and solicitor’s negligence (“the struck out claims”) but contends that he was wrong to strike out the claims alleging (1) undue influence, (2) lack of testamentary capacity, (3) want of knowledge and approval and (4) fraud. I shall refer to the first three of these claims as “the pursued claims” and to the fourth as “the fraud claim”.

By an application for permission to amend dated 5 May 2017, the Claimant seeks permission to rely upon a new draft amended claim form and a new draft amended particulars of claim settled by Mr Acton, which are designed to replace in their entirety the original claim form and previous versions of the particulars of claim. She seeks permission to pursue two new claims, not pleaded in the original claim form or previous versions of the particulars of claim, as follows: (1) a constructive trust arising from mutual wills and (2) a constructive trust arising from a breach of promise between the Deceased and the Claimant in her capacity as beneficiary of Mr Lech’s will. I shall refer to these claims as “the new claims”.

The Claimant’s grounds of appeal can be summarised as follows. First, she contends that the Master’s decision was unjust because of a serious procedural or other irregularity, pursuant to CPR 52.21(3)(b) (“the procedural ground of appeal”). Second, she contends that the Master was wrong to conclude that the pursued claims and the fraud claim had no real prospect of success (“the substantive ground of appeal”). Third, she contends that the appeal should be allowed on the basis of her application for permission to amend which includes the new claims and asks the court to re-hear the application before the Master, rather than merely review it, pursuant to CPR 52.21(1)(b), on the grounds that it would be in the interests of justice to hold a re-hearing (“the re-hearing ground of appeal”). Finally, she contends that the Master was wrong to order her to pay costs on the indemnity as opposed to the standard basis (“the costs ground of appeal”). I shall address each of these grounds of appeal in turn.

Pursuant to CPR 52.21(3)(b), an appeal court will allow an appeal where the decision of the lower court was unjust because of a serious procedural or other irregularity in the proceedings in the lower court. The Claimant contends that the Master ought not to have struck out the pursued claims and the fraud claim on the basis that they had no real prospect of success but instead should have adjourned the Defendants’ strike out application in order to give her an opportunity to take legal advice and make a further application for permission to amend. In order to determine whether this ground of appeal is justified, it is necessary to consider in some detail the sequence of events leading up to the hearing before the Master on 18 January 2017.

Prior to issuing her claim in February 2016, the Claimant was represented by Rollingsons Solicitors and her daughter Carmen was represented by Anthony Gold Solicitors. Both Rollingsons and Anthony Gold corresponded with the solicitor who drew up the 2009 wills, Mrs Rosalind Paterson Morgan, a partner in the firm of Brice Droogleever & Co. However, the Claimant acted in person when she came to issue her claim on 18 February 2016. Her particulars of claim ran to 38 pages and did not comply with CPR 16.4(1)(a) since they did not contain a concise statement of the facts on which she relied.

On 5 May 2016 the Claimant made an application for summary judgment, apparently unsupported by a witness statement. On 27 June 2016, the Defendants’ solicitor, Mr Ian Richards, made a witness statement principally complaining that his clients had not seen many of the documents that the Claimant had filed with the court. On 30 June 2016 Master Bowles dismissed the Claimant’s application for summary judgment as well as the claim against the Second Defendant. It was subsequently accepted that the latter order should not have been made since the Second Defendant was a co-executor of the May 2009 will and therefore needed to be a party to the claim.

On 20 July 2016 Master Price made an order of the court’s own initiative providing for (1) the First Defendant to serve a defence, (2) all parties to file witness statements in compliance with CPR 57.5 and (3) a CMC to take place on 13 September 2016.

On 25 August 2016 the First Defendant filed a defence complaining about the way the Claimant’s claim had been presented and seeking an order that the court pronounce in favour of the validity of the May 2009 will in solemn form. The First Defendant’s directions questionnaire dated 26 August 2016 indicated that he intended to make an application for the claim to be struck out. However, no such application was made until very shortly before the hearing that took place before the Master on 18 January 2017.

It would appear that at some stage the CMC due to take place on 13 September 2016 was adjourned to be heard on 11 November 2016. On that date, the Claimant appeared before Master Price in person and Mr Richards represented the Defendants. The Master ordered the Claimant to issue and serve by 18 November 2016 an application to amend her particulars of claim and required the Defendants’ solicitors to file and serve a letter by 16 December 2016 setting out the reasons why any amendment should not be permitted, together with any evidence to be relied on to be given by witness statement, exhibiting documents relied on. The Claimant was to file and serve any evidence in reply to the Defendants’ solicitors’ letter by 19 December 2016. The CMC was adjourned to 18 January 2017 with a time estimate of one day and directions were given for the parties to agree the contents of the hearing bundle and for the Defendants’ solicitors to lodge the same no later than noon on 16 January 2017.

The Claimant has provided the court with a witness statement dated 18 January 2018 giving her recollection of the hearing on 11 November 2016, which she states is drawn from detailed notes she made at the time in order to seek representation and guidance from a direct access barrister. She says that her understanding of what was ordered at that hearing was that she should issue an application to amend her breach of trust claim which she indicated she could do within 7 days. She says she received no warnings that if she did not make wholesale amendments to her particulars of claim, the particulars of claim risked being struck out. I have also been provided with a copy of Mr Richards’ attendance note of the hearing on 11 November 2016 which refers to the Master commenting on certain of the claims made in the particulars of claim in some detail. The note records that the Claimant was asked how long she would need to amend her particulars of claim and the Claimant indicated she could do it in 7 days. The note continues: “Both the Master and I were astonished by that. It would need some careful work. She said she could do it later today. Again this was the very worrying element of dealing with this Claimant.” I have no reason to doubt the accuracy of Mr Richards’ attendance note. It would appear from the fact that the Claimant indicated she only required 7 days in which to produce an amended particulars of claim that she did not appreciate the seriousness of the position and to some extent this confirms what she says was her understanding, namely, that the amendment she was required to make only related to the breach of trust claim. Of some relevance in the context of the new claims, Mr Richards’ note contains the following paragraph: “In dealing with the above, the Judge (sic) asked how could an Express Trust come about otherwise than by Mutual Wills. The Claimant conceded that she was never alleging Mutual Wills. So she clarified that in Court.”

On 21 November 2016, the Claimant served a document entitled “Response to Defence Statement” which contained the following assertion: “Allegations of technical deficiencies in the Claimant’s pleadings seem to have been made with the intention to obfuscate the issues rather than assist the court in the process of adjudication”.

The following day, 22 November 2016, the Claimant issued and served an application to amend her particulars of claim. In the relevant box of the application notice which required the Claimant to state what order she was asking the court to make, the Claimant stated: “Amendment of Breach of Trust Claim. Testator’s prior will contains a testamentary trust. This claim is therefore supported by trust law. The original breach claim relied on legal precedents in which the party owning an estate believed the wills were mutual & irrevocable. It was subject to a discretionary decision.” Whilst the meaning of this statement is unclear, it is evident that the attached draft amended particulars of claim did no more than amend the breach of trust claim and Mr Acton agreed that the amendments did not cure any of the deficiencies in the unamended particulars of claim. In his skeleton argument in support of this appeal and the application for permission to amend, he accepted (1) that there were substantial difficulties with the particulars of claim “in particular because of its excessive length, questionable relevance and coherence in some places, pleading of and references to evidence contained in other documents, and (excessive) pleading of case law authority” and (2) that“the breach of trust, proprietary estoppel and solicitor’s negligence claims did not disclose reasonable grounds for bringing them”.

On 16 December 2016, the Defendants’ solicitors sent an email to the Claimant attaching a long letter setting out their objections to the draft amended particulars of claim, complaining that notwithstanding the guidance given by the Master the amended particulars still did not comply with CPR 16.4(1)(a) in that they failed to contain a concise statement of the facts on which she relied. The Master’s order of 11 November 2016 had directed the Defendants’ solicitors to set out “full details of the reasons why any amendment should not be permitted together with any evidence to be relied on by witness statement and exhibiting documents relied on”. In fact, the Defendants’ solicitors’ letter of 16 December 2016 went further than this and objected not just to the amendments to the breach of trust claim but to the pleading as a whole. However, there is no warning in this letter that the Defendants intended to issue a strike out application to be heard at the hearing on 18 January 2017. Moreover, there was nothing to stop the Defendants from issuing such an application or indeed a summary judgment application at any time following their receipt of the Claimant’s application to amend in the form of the draft amended particulars of claim on about 22 November 2016.

Nothing further appears to have happened until 10 January 2017. On that date the Defendants wrote to the court asking it to issue an application to strike out the claim on a number of grounds including that the statement of case disclosed no reasonable grounds for bringing the claim and/or it was an abuse of the court’s process; and/or was not compliant with CPR r16.4(1)(a), despite “the clear warnings, guidance and urges given by the Court both (apparently) in the Court office and certainly at Court within two hearings”; and/or pursuant to the court’s inherent jurisdiction. The application was supported by a witness statement of Mr Richards. Apart from complaining (with justification) that it was “extremely difficult to follow the Claimant’s case which appears to be virtually a moving target”, Mr Richards’ statement was limited to addressing the fraud claim. Mr Richards also exhibited documents to his witness statement, most of which the Claimant had seen before (since they had previously been provided to her former solicitors, Rollingsons) and which, for reasons I give below, demonstrated beyond any doubt that the Claimant’s allegation that the First Defendant is an impostor (i.e. the fraud claim) is fanciful and without foundation.

The Defendants’ application notice and supporting witness statement were emailed to the Claimant on 11 January 2017. It is not known when the application itself was issued but I assume that this happened on or before 12 January 2017 which meant that the Defendants probably complied (just) with the minimum three day notice period required by CPR 23.7(1)(b). On 12 January 2017, the Defendants’ solicitors received various documents from the Claimant including a disclosure report, what was described as a skeleton statement and witness testimony on the DNA test issue.

The Defendants instructed Ms Hargreaves to appear on their behalf on 17 January 2017, the day before the hearing. Ms Hargreaves prepared a 15 page skeleton argument with impressive speed which was lodged with the Master on the day of the hearing and handed to the Claimant as she went into court. Although no fault of Ms Hargreaves, this was in breach of the Chancery guide which requires skeletons to be provided by 10am the day before the hearing. Ms Hargreaves informed me that the late provision of her skeleton to the Claimant was raised in court at the outset of the hearing on 18 January 2017 and that the Master asked the Claimant if she was happy to proceed with the hearing of the application and she confirmed that she was. Ms Hargreaves also informed me that the Claimant confirmed the amended particulars of claim contained her definitive case.

Notwithstanding that the Claimant provided such confirmations, Mr Acton submits that it was unfair to the Claimant and not in accordance with the overriding objective, in particular the requirement to deal with cases justly and ensure that parties are on an equal footing, to proceed with the strike out application on 18 January 2017. He contends that this amounted to a serious procedural irregularity. He submits that the fact that the Claimant did not herself seek an adjournment, either because she was unaware that she could do so or that it would be in her interests to do so or because of overconfidence in her own case, does not detract from the court’s duty to do justice and treat the parties fairly, particularly having regard to the Claimant’s lack of representation. He relies upon the fact that the Defendants’ lengthy skeleton was handed to the Claimant as she came into court as merely adding to the unfairness of expecting a litigant in person to deal with the application at such short notice. He submits that the hearing should not have been allowed to proceed at least without a strong warning to the Claimant as to the position she was in and an explanation that it would be in her interests for the matter to be adjourned on the basis of agreed directions. He submits that the fair way of dealing with the matter on 18 January 2017 would have been to have adjourned the applications to strike out and amend and to have warned the Claimant that she ought to obtain legal advice and seek permission to amend in terms of a professionally settled fresh draft particulars of claim and that if she did not do this she was likely to face considerable difficulties at the resumed hearing.

Ms Hargreaves submits that the Claimant had been given sufficient warnings about the deficiencies in her case at previous hearings and it was not unfair to the Claimant for the matter to proceed on 18 January 2017 after she had confirmed to the Master that she was content to do so. Both counsel referred me to the guidance given by the Court of Appeal in Labrouche v Frey (Practice Note) [2012] EWCA Civ 881; [2012] 1 WLR 3160 and Dunbar Assets Plc v Dorcas Holdings Ltd [2013] EWCA Civ 864 (referred to in the 2017 White Book at 52.21.5) which highlight the importance of giving a party a fair opportunity to make their case or to respond to an application. Ms Hargreaves submitted that the Claimant was given such an opportunity and referred me to the passage on page 1818 of the 2017 White Book which states (per Lord Fraser in G v G (Minors: Custody Appeal) [1985] 1 WLR 647 at 652) that “the appellate court should only interfere when they consider that the judge of first instance has not merely preferred an imperfect solution which is different from an alternative imperfect solution which the Court of Appeal might or would have adopted, but has exceeded the generous ambit within which a reasonable disagreement is possible”. She further referred me to the concluding remarks of Lord Neuberger in paragraphs 41 and 42 of Labrouche, in particular where he emphasised that, on procedural and case management issues, trial judges should be encouraged to be robust and that it is not enough for an appellant to satisfy an appellate court merely that it would, let alone that it might, have reached a different conclusion from the judge.

I do not accept Mr Acton’s submission that the Master ought to have adjourned the applications before him on 18 January 2017 on the basis that the Claimant had insufficient notice of the Defendants’ strike out application and only received Ms Hargreaves’ skeleton as she entered the hearing. It seems to me that the Master was fully entitled to proceed to hear the applications that day. The hearing date had been fixed on 11 November 2016 and it is clear from the Master’s order made on that date that the parties envisaged there would be a lengthy hearing on 18 January 2017 at which the Claimant’s draft amended particulars of claim would be considered. It is right that the Defendants’ application to strike out the claim was only issued shortly before hearing but it would have been clear to the Claimant following receipt of the Defendants’ solicitors’ letter dated 16 December 2016 that the Defendants were maintaining their objections to the way in which the claim was formulated.

The hearing on 18 January 2017 lasted from about 11am until about 5pm. At the end of the hearing, the Master gave a lengthy reasoned judgment which considered each of the bases on which the Claimant put forward her claim as formulated in the amended particulars of claim and he struck out the entirety of the claim, with costs on the indemnity basis. The Claimant does not challenge the Master’s decision in respect of any of the struck out claims. However, she contends that the Master was wrong to strike out the pursued claims and the fraud claim. In respect of these claims, it is common ground that the Master did not strike them out on any of the bases identified in the Defendants’ strike out application. In particular, in respect of these claims, he did not conclude that the draft amended particulars of claim disclosed no reasonable grounds for bringing them. Instead, he struck out those claims on the basis of the summary judgment test, namely, that they did not have any realistic prospect of success.

In my judgment, it is crucial to the outcome of this procedural ground of appeal that the Master decided to proceed on the basis that what he had before him was an application for summary judgment under Rule 24.2(a)(i) and (b), when what was in fact before him was an application to strike out under Rule 3.4(2) alleging that the Claimant’s statement of case disclosed no reasonable grounds for bringing the claim and/or that it was an abuse of process.

In appropriate circumstances the court has a discretion to treat an application under Rule 3.4 as including an application for summary judgment under CPR Part 24. I was referred to the note at paragraph 3.4.6 in the 2017 White Book and to S v Gloucestershire County Council [2000] 3 All ER 346 at pages 372c-373f, Taylor v Midland Bank Trust Co Ltd [2002] WTLR 95 at pages 107C-108H and 113E-G, and Moroney v Anglo-European College of Chiropractice [2009] EWCA Civ 1560. However, it is clear that in none of these cases was there any procedural unfairness to the claimants in proceeding in this way because they had had a full opportunity to meet the application for summary judgment. In other cases the court has refused to grant summary judgment in the absence of a formal application, particularly if the party is left in doubt that he is facing an application for summary judgment. In Ministry of Defence v AB and others [2010] EWCA Civ 1317, the Court of Appeal indicated that it would have set aside a summary judgment made without formal notice (in fact it did not have to do so because, although the application was allowed to be made, it was dismissed) on the grounds that it was not appropriate on the facts of that case to place on the judge the decision as to whether or not to exercise the jurisdiction under CPR Part 24 of his own motion.

There are procedural requirements which should be complied with when making an application for summary judgment. CPR 24.4(3) stipulates that a respondent must be given at least 14 days’ notice of a summary judgment hearing. It is obvious that this procedural requirement was not complied with in this case. Mr Acton complains that the consequences of allowing the application to proceed as one for summary judgment were not properly or fairly explained to the Claimant. He submits that neither the Defendants nor the Master clearly explained to the Claimant that the court would be proceeding to determine the Defendants’ application under Part 24 as opposed to Rule 3.4 even though no Part 24 application had been issued and no application to amend the existing application was being made. He further submits that in circumstances where he was dealing with a litigant in person it was incumbent upon the Master to explain to the Claimant that he intended to consider the application solely on the basis of the documents in the bundle lodged with the court in order to decide whether her claims had any realistic prospect of success and that if she wished to rely on any further documents or evidence, she had a right to file such evidence in reply to a summary judgment application under Rule 24.4(3).

The Defendants say that it was or ought to have been clear to the Claimant from their strike out application that they intended to rely on evidence and documents, such as the Larke v Nugus papers which were to be included in the bundle for the hearing on 18 January 2017 pursuant to the Master’s directions made on 11 November 2016. They say that their counsel’s written submissions filed with the court on the morning of the hearing on 18 January 2017 focused, in part, on whether the pursued claims and the fraud claim had a real prospect of success in light of the documentary evidence. Moreover, they say that the Master made clear to the Claimant during her submissions at the hearing itself that she needed to satisfy him that those claims had realistic prospects of success. However, I am not persuaded that any of these matters enabled the Claimant to gain a proper appreciation of the fact that she was facing an application for summary judgment which would involve the court considering the evidence and documents in detail at the hearing and reaching a conclusion as to whether on the basis of that evidence and those documents her claims had a realistic prospect of success. In any event, the Defendants’ reliance on what was said in their skeleton handed to the Claimant as the hearing commenced and on what the Master said to her in the course of the hearing does not really assist them unless they can demonstrate that the consequences of the alternative (summary judgment) procedure they were inviting the court to adopt were properly explained to the Claimant and that, having been given such explanation, she agreed to proceed.

I asked Ms Hargreaves whether the Defendants made any application to the Master at the hearing to treat their strike out application as including a summary judgment application. Ms Hargreaves said that there was some discussion about summary judgment and strike out principles at the commencement of the hearing and that both her skeleton and the Master’s judgment proceeded on the basis that an application for summary judgment was being made. However it seems clear that Ms Hargreaves did not formally ask the Master to treat the strike out application as including a summary judgment application nor did she remind him of the procedural requirements or refer him to the authorities which consider the circumstances in which it was appropriate to permit the Defendants to make their application under rule 24.2 as well as rule 3.4.

So I proceed on the basis that there was no express oral application made to the Master at the hearing asking him to treat the strike out application as a summary judgment application. Nor does the Master say in his judgment that he was exercising his discretion to proceed on that basis. Nevertheless, in relation to the undue influence claim, it is clear that the Master approached the matter as if an application for summary judgment had been made. In paragraph 16 of his judgment, after referring to the fact that he was conscious he was not conducting a mini-trial, he concluded that the case put forward by the Claimant amounted “in the final analysis to no more than tittle tattle, whereas the evidence of the solicitor in relation to the drawing of the Wills and the history of the testatrix’s state of mind and independence are well made out in the evidence”. On that basis, he concluded that the undue influence claim did not have “any realistic prospect of success”. In paragraph 20 of his judgment, he reached the same conclusion in relation to the question of testamentary capacity. Having again stated that he was conscious of the need to avoid making decisions on contested questions of fact, his conclusion was that “the allegations as to want of capacity do not have any realistic prospect of succeeding at trial”. Equally in paragraph 21 of his judgment, having referred to the allegation that the Deceased “was in fact illiterate, something she was embarrassed about”, he stated “this does not in my view have any realistic prospect of success because it is not credible in the face of the compelling documentary evidence which is before the court”.

Ms Hargreaves submitted that it was within the Master’s case management discretion to proceed in this way. However, I have difficulty accepting this in circumstances where no application was made to the Master to treat the strike out application before him as one seeking summary judgment and the Master did not in his judgment expressly consider the fairness to the Claimant of allowing a strike out application to be treated as a summary judgment application at the hearing itself and dispensing with the procedural requirements contained in CPR Part 24. It was not suggested by Ms Hargreaves that the distinction between a strike out application and a summary judgment application was explained to the Claimant at the hearing or that she was given an opportunity to seek an adjournment as a result of the application being made on a different basis. It seems that what the Master did was to apply a test on the basis of an application not before him in circumstances where he had neither explicitly exercised his discretion to treat the application before him as including an application for summary judgment nor explained to the Claimant the consequences of the course he proposed to take. The fact that the Claimant was a litigant in person cannot be ignored. She was in my view entitled to have proper notice of the fact that the Defendants were applying for summary judgment.

Ms Hargreaves further submitted, in reliance on the House of Lords decision in Three Rivers DC v Bank of England (no 3) [2003] 2 AC 1 (per Lord Hope at paragraph 93 where he cites the well-known guidance of Lord Woolf inSwain v Hillman), that the real issue was whether the Master, in dismissing the pursued claims and the fraud claim on the basis that they had no realistic prospect of success, had given effect to the overriding objectives contained in CPR Part 1 by saving expense, achieving expedition and avoiding the court’s resources being used up on cases where this serves no purpose. It was submitted that the Claimant’s case was bound to fail and that it was in the interests of justice, including the Claimant’s interests, that she should know as soon as possible that that was the position. However, I consider the more relevant considerations are those referred to by Lord Hope in paragraph 95, namely that summary judgment is appropriate where it is clear that as matter of law even if a party were to succeed in proving all the facts he would not be entitled to the remedy he seeks or that it is possible to say with confidence before the trial that the factual basis for the claim is fanciful because it is entirely without substance. Lord Hope continues: “It may be clear beyond question that the statement of facts is contradicted by all the documents or other material on which it is based. The simpler the case the easier it is likely to be to take view and resort to what is properly called summary judgment. But more complex cases are unlikely to be capable of being resolved in that way without conducting a mini-trial on the documents without discovery and without oral evidence”.

In Three Rivers(supra) at paragraph 88, Lord Hope said this: “… I would not go so far as to say that your Lordships are obliged to treat the Bank’s motion to strike out as an application for summary judgment under rule 24.2. It would, I think, be more accurate to say that your Lordships have power to do so, and that the question is whether your Lordships should exercise that power: see Taylor v Midland Bank Trust Co Ltd … CPR Pt 24 sets out various procedural requirements which do not apply to rule 3.4. But the Claimants do not object to the application of rule 24.2 on procedural grounds. So I would accept Mr Stadlen’s submission that it is appropriate for the Bank’s application for the claim to be struck out to be treated as if it were an application for summary judgment” (emphasis supplied). It is to be noted that the Claimants in Three Rivers did not object to the Bank’s application to strike out as if it were an application for summary judgment. This is to be distinguished from the present case where the Defendants are constrained to accept that the Claimant was not given an opportunity to object to their application to strike out being treated as if it were an application for summary judgment.

The Master’s references in paragraphs 16 and 20 of his judgment to the fact that he was not conducting a mini-trial or making decisions on contested questions of fact demonstrate that he had the cautionary guidance of Lord Hope well in mind when giving his decision. I do not for one moment underestimate the difficulty of the task with which he was faced, given the serious deficiencies in the statement of case on which the Claimant relied at that time. Furthermore, it is important to highlight the fact that on this appeal the Claimant, now represented by counsel, does not challenge the Master’s decision in respect of the struck out claims and, for the reasons I give below, I consider that he was also plainly correct to strike out the fraud claim. Nevertheless, having had the benefit of being able to consider a properly drafted statement of case as well as detailed written and oral submissions and for the reasons I give below in relation to the substantive ground of appeal, I consider that the Master was wrong to grant summary judgment dismissing the pursued claims. What he did was to conduct a mini-trial in circumstances where it could not be said that (to adopt Lord Hope’s phraseology) it is beyond question that the pursued claims are contradicted by all the documents or other material on which they are based.

For these reasons, I accept Mr Acton’s submission that the Master’s decision to proceed on the basis that the Defendants had made a summary judgment application amounted to a serious procedural irregularity, serious in the sense that it was not trivial or of no real significance. Given that the Defendants’ application to strike out had only been issued some 3 working days prior to the hearing, it is likely that had the procedural and substantive consequences of the Defendants making a summary judgment application been explained to the Claimant at the hearing, she would have sought and been granted an adjournment in order to seek professional advice and her claim would thereafter have been properly formulated and argued in the manner that has occurred on this appeal.

I was referred by Ms Hargreaves to Serene Construction Ltd v Barclays Bank plc[2016] EWCA Civ 1379, where Hamblen LJ said at paragraph 33: “In order to succeed on the appeal the company needs to show (1) that the judge exercised his case management discretion unreasonably, giving rise to procedural irregularity, and (2) that this made the decision unjust”. For the avoidance of doubt, I take the view that the procedural irregularity which occurred as a result of the Master treating the Defendants’ application to strike out the claim as an application for summary judgment rendered his decision unjust.

In light of my decision that the Claimant’s appeal should be allowed in relation to the pursued claims on the basis that there was a serious procedural irregularity, it is appropriate to consider the next two grounds of appeal together, namely, whether the Claimant’s pursued claims have a real prospect of success, and whether the appeal should simply be a review of the Master’s decision as opposed to a rehearing, and if the latter whether the Claimant should be permitted to amend her statement of case in the form now drafted by Mr Acton (“the new APOC”).

The new APOC represent a complete re-write and re-formulation of the pursued claims and the fraud claim, which are the only claims the Claimant now seeks to bring. The Claimant invites the court to consider the new APOC when deciding whether the Master was wrong to strike out those claims and if necessary to treat the appeal as a rehearing of the strike out application pursuant to CPR 52.21(1)(b), as opposed to a review of the Master’s decision.

The Defendants submit that it is wrong in principle, if the appeal is to proceed by way of review of the Master’s decision (as they submit it should), for the court to take into account the new APOC which contain new factual allegations that did not feature in the statement of case considered by the Master. They submit it would be unjust to do so in circumstances where the Claimant specifically confirmed to the Master at the hearing on 18 January 2017 that the amended particulars of claim attached to her application issued on about 22 November 2016 represented her definitive case.

I accept that if the new APOC are to be taken into account in relation to the appeal, the Claimant must first show that it is in the interests of justice to hold a rehearing. As was stated by Dyson LJ in Asiansky Television v Bayer Roisin[2001] EWCA Civ 1792 at paragraph 79 to 81: (1) the general rule is that every appeal from a lower court will be limited to a review of the decision of that court. It is for the party wishing the appeal to be by way of rehearing to persuade the appeal court to adopt that course; (2) there must be some feature of the case that unusually makes it unjust that the appeal to be limited to one of review; (3) but there may be cases where it is difficult or impossible to decide an appeal justly without a rehearing: for example, if there was a serious procedural irregularity in the court below. Clarke LJ expressed the view in paragraph 10 of Asiansky that it was not desirable to fetter the wide discretion given to the court and that all will depend on the particular circumstances of the case.

I am satisfied, in light of my conclusion that there was a serious procedural irregularity at the hearing on 18 January 2017, that it is appropriate for this appeal to proceed as a rehearing as opposed to a review of the Master’s decision. Accordingly, I propose to consider whether each of the pursued claims and the fraud claim as pleaded in the new APOC has a realistic prospect of success.

In paragraph 19 of the new APOC it is alleged that the execution of the 2009 wills was obtained by the exercise of undue influence by the Second Defendant upon the Deceased.

The particulars of the facts and matters relied upon in support of the allegation of undue influence are as follows:

With the exception of the passages I have placed in bold square brackets referring to the First Defendant being an imposter (in sub-paragraphs (3) and (15) and the entirety of sub- paragraph (19)), which must be excised from the draft pleading for reasons I give below when considering the fraud claim, I consider that the undue influence claim as now formulated in the new APOC has a real (as opposed to fanciful) prospect of success. In view of this conclusion, and the fact that this claim will therefore need to be tested at trial, I express my reasons as briefly as possible.

There is no dispute as to the law to be applied. The burden of proving undue influence is on the Claimant. It is a high burden, albeit on the civil standard. The Claimant must prove that the Deceased’s will was overborne by coercion or by fraud. As stated by Lewison J in Re Edwards (Deceased) [2007] EWHC 1119 (Ch); [2007] WTLR 1387 at paragraph 47(vi), the will of a weak and ill person may be more easily overborne than that of the hale and hearty one but the question of whether undue influence has procured the execution of a will is a question of fact. The question for the court will be whether in making her dispositions, the Deceased acted as a free agent.

The Master addressed the undue influence claim in paragraphs 10 to 16 of his judgment. He highlighted four particular features of the evidence. First, he referred to the statements made in correspondence after the Deceased’s death by Mrs Paterson-Morgan, the solicitor responsible for drawing up the 2009 wills, in particular the statement in a letter to Carmen’s solicitors in March 2012 that: “At all times Mrs Lech [the Deceased] has been very determined and collected and showing no signs of any decrease in her mental faculties nor undue influence. Sadly, however, there have been many times when she has had disputes with your client since her late husband’s death”. Second, he relied on the fact that the Deceased received independent advice from Mrs Paterson-Morgan at the time of making the 2009 wills. Third, he referred to the letter sent by the Claimant to the Deceased in mid-2009 in which (amongst other things) she stated: “I am not stupid and I think it is most likely that you have rewritten your will, leaving everything to June [the Second Defendant]. It is your prerogative to do so, but I decided to write you about this to make sure you are not living under some kind of deception based on lies told to you by either Carmen or June about me” and “I have to say this though about June. I do not blame her, as she is a basically very good hearted woman who was helping you out of kindness not just for what she can get”. Fourth, he referred to the evidence of the Deceased’s state of mind and independence as contained in the Larke v Nugus papers and medical records in the hearing bundle. The Master’s conclusion in paragraph 16 was that these matters were sufficient to render the contrary assertions “tittle tattle” such that there was no realistic prospect of the undue influence claim succeeding at trial.

The facts and matters pleaded in detail in the new APOC were not presented to the Master in this way by the Claimant at the hearing on 18 January 2017. So far as the involvement of Mrs Paterson Morgan is concerned, the Master may not have appreciated that it would appear she did not have any face-to-face meetings with the Deceased after 3 March 2009 and it is not clear from the documents that she went through the draft wills with the Deceased, whether face-to-face or over the telephone. The relevant instructions which Mrs Paterson Morgan says she was given by the Deceased on 10 March 2009 and 1 April 2009 in relation to the preparation of the April 2009 will were given over the telephone. No attendance notes of either of those conversations, nor indeed of any of Mrs Paterson Morgan’s meetings or telephone discussions with the Deceased, have so far been produced. The instructions Mrs Paterson Morgan received which resulted in the execution of the May 2009 will do not appear to have been provided to her at a meeting with the Deceased. Mrs Paterson Morgan’s letter dated 8 May 2009 suggested that she planned to visit the Deceased with the new will and at the same time go through the powers of attorney she had drafted for the Deceased in favour of the Defendants. That visit did not materialise. Instead on 11 May 2009 a request was made by telephone to Mrs Paterson Morgan’s firm for the new will to be posted to the Deceased which it was on the same date. This new will was then executed by the Deceased on 20 May 2009. The witnesses to both the 2009 wills were not neighbours of the Deceased (as recommended by Mrs Paterson Morgan) but were neighbours of the Second Defendant, one of whom it is alleged by the Claimant was a close friend and confidante of the Second Defendant.

The Claimant submits that the sequence of events pleaded in sub-paragraphs 19(6) to (16) of the new APOC is consistent with the Second Defendant exercising undue influence over the Deceased by gradually increasing the First Defendant’s interest in the estate, until he became the principal beneficiary as well as the Second Defendant and her two children each receiving £10,000 gifts thereunder. She emphasises that it is not alleged that undue influence was exercised by the Second Defendant in Mrs Paterson Morgan’s presence and submits that it is the nature of undue influence that it might not necessarily be detected by a third party. She submits that Mrs Paterson Morgan not being present at the time of execution of the wills, combined with the allegations regarding the witnesses to those wills, renders Mrs Paterson Morgan’s statements in the correspondence of less weight than the Master attributed to them. The fact that the Deceased appeared to her solicitor to be determined to take a particular course of action does not preclude the possibility that undue influence was being exerted upon her to lead her to take that view.

The Claimant relies on an email sent to her on 4 July 2012 by Barbara Witczac-Cholewa, who became the Deceased’s carer in January 2009 (“BW-C”). BW-C’s email contains the following sentence: “The best what [sic] she [the Second Defendant] was doing with her [the Deceased] was mutual drinking and fuelling hatred to Family”. As the Master recorded in paragraph 15 of his judgment, the Claimant indicated to him during the course of argument that the letter she sent to the Deceased in mid-2009 was written before she had learnt of what had been going on and in particular received the statements from BW-C which she submits are evidence of the Second Defendant poisoning the mind of the Deceased against her. There is also a referral form completed by the Deceased’s general practitioner, a Dr Pudlowska, in late 2011 which states as the reason for making an urgent referral that the Deceased was an alcoholic, being groomed for her house and money by an alcoholic friend who was supposed to be acting as a “carer” (the word is in quotes). A later letter from the same doctor explains that the referral related to a vulnerable adult with an alcohol problem, a lot of money and a big house and the doctor’s belief that “a friend, of many years, who is also a drinker, is manipulating her to give her her money, rewrite her will in her favour”. The fact that the doctor’s concerns were expressed towards the end of 2011, over two years after the execution of the 2009 wills, may affect the weight to be attributed to them but it does not mean that the same concerns might not have applied to the position as it existed prior to the execution of the 2009 wills. These are matters which will require to be considered in the context of all the available evidence, including that of the Claimant and the Second Defendant, at trial.

The Master considered this evidence and stated in paragraph 15 of his judgment: “The evidence as it stands is therefore, one might say, equivocal. There are particulars which go to suggesting that there were well-founded allegations of undue influence on the basis of the referral by the doctor and what is alleged and stated to be the views of Mrs Barbara Witczac-Cholewa. As against that, as I say, one has the evidence of the solicitor and one also has to bear in mind the need for the case to be proven on the balance of probabilities, but the burden is nonetheless a high one”.

I agree with the Master that the evidence regarding undue influence is equivocal. The question is whether it is possible to conclude at this summary stage that the Claimant’s case on undue influence has no real prospect of success. I do not consider that it is possible to say at this stage, without hearing the evidence to be called at trial, that the assertions as now pleaded in paragraph 19 of the new APOC in support of the allegation that undue influence was exercised by the Second Defendant over the Deceased are fanciful and have no prospect of success.

However, I regard the new and separate allegation of fraudulent calumny made against the Second Defendant as falling into a separate category. Mr Acton seeks to add a further paragraph 19A into the new APOC headed “fraudulent calumny” which states:

This is a pleading of fraud against the Second Defendant. Ms Hargreaves submitted that this allegation of fraudulent calumny pleads that the Second Defendant “cast dishonest aspersions” on the characters of the Claimant and her daughter without providing any particulars of the alleged aspersions or of the alleged dishonesty. She submitted that it cannot be inferred from the words “fuelling hatred” used in BW-C’s email to the Claimant dated 4 July 2012 that the Second Defendant was casting dishonest aspersions on the Claimant’s and her daughter’s characters.

In his written reply submissions, Mr Acton submitted that “BW-C must have overheard specific statements and evidence will reveal them” and that “the full flavour of what [the Second Defendant] was saying will emerge in the witness statements and at trial”. He further submits that it is not necessary to require the pleading of specific statements in order to make good an allegation of fraudulent calumny.

On this issue, I prefer the submissions of Ms Hargreaves. Allegations of dishonesty and fraud must be specifically pleaded and properly particularised. Either BW-C has herself been unable to identify any specific allegedly dishonest statements made by the Second Defendant to the Deceased or the Claimant has failed to make proper enquiries of BW-C before making an allegation of fraud and dishonesty against the Second Defendant. It is not acceptable for the Second Defendant to have to wait until the evidence of BW-C is received before she is able to understand the case she has to meet. If the Claimant has sufficient material properly to allege fraud and dishonesty against the Second Defendant, then it is incumbent on her to identify the particulars which support that serious allegation. If the Claimant does not have that material, the allegation of fraudulent calumny should not be permitted to be made. For those reasons I am not prepared to allow the allegation in paragraph 19A of the new APOC to be made in the form in which it is currently pleaded.

In paragraph 21 of the new APOC, the Claimant alleges that the Deceased executed the 2009 wills without knowledge and approval of their contents. She alleges that the Deceased had a very low level of literacy and limited aptitude and lack of temperament for any type of reading and that these inabilities were exacerbated by her poor health in 2009. In particular she alleges that the Deceased’s cataracts severely compromised her ability to focus physically on print or other writing clearly enough to read it. The pleading continues:

The Master took the view that the allegation of illiteracy did not have any realistic prospect of success in the face of what he described as compelling documentary evidence and in this context he referred to the Larke v Nugus papers which contain no suggestion that there were any issues over the question of literacy and to the Claimant’s own email letter to the Deceased (subsequently sent by the Claimant to Mrs Paterson Morgan) which suggested the Claimant believed the Deceased was perfectly capable of reading her letter. The Master said that the fact of illiteracy did not necessarily lead to any conclusion as to want of knowledge and approval because “the fact of the matter is that the Will and its contents were made known to her one way or another by being read over to her or by her dealings with the solicitors”. He concluded that there was no basis on which the allegation of want of knowledge and approval could succeed on the evidence.

Mr Acton submitted that this was not an issue that could be determined on a summary basis and that any finding as to the extent of the Deceased’s literacy will be dependent upon the evidence given at trial, particularly of Mrs Paterson Morgan and the Claimant. He submitted that there was no evidence or other material before the court supporting a case that the 2009 wills had been read to the Deceased. He repeated the submission that there was no evidence that Mrs Paterson Morgan had taken face-to-face instructions from the Deceased as to the contents of the 2009 wills or that she had read either of those wills over to her. Ms Hargreaves referred me to Mrs Paterson Morgan’s letter to the Deceased dated 26 January 2009 from which it is apparent that she received preliminary instructions regarding the Deceased’s will at a meeting and also to Mrs Paterson Morgan’s handwritten notes on a draft of the will made during and following a telephone conversation with the Deceased on 6 April 2009. However, the fact remains that there is no evidence that either of the 2009 wills, which were sent to the Deceased by post, were read by the Deceased or read over to her by anyone. The Second Defendant has not given evidence that she read the 2009 wills to the Deceased. There is one document dated 17 April 2009 which purports to have been signed by the Deceased and states in what appears to be different handwriting from the signature that no money is to be left to the Claimant or her daughter and they must pay all costs out of Mr Lech’s estate. This is plainly a document about which evidence would need to be given.

I am unable to conclude at this stage that the allegations as now refined in paragraph 21 of the new APOC are fanciful and have no realistic prospect of success. The court will need to be satisfied on the balance of probabilities on the basis of the documentary evidence and, presumably, Mrs Paterson Morgan’s oral evidence that she took instructions from the Deceased herself and that the 2009 wills were drawn up in accordance with those instructions.

Mr Acton further relies upon the fact that the Defendants’ counterclaim that the court should pronounce in favour of the May 2009 will in solemn form was continuing and the Master gave directions for this to be tried on written evidence, which did not include enabling the Claimant to file and serve evidence. He submitted that this was wrong and that directions should have permitted the Claimant to put in evidence as to why the May 2009 will should not be pronounced for in solemn form. Clearly, in circumstances where a claim has been struck out, it would not be appropriate to allow the Claimant to re-run allegations that have already been struck out as not disclosing any realistic prospect of success. However, in light of my conclusion that the allegation of want of knowledge and approval cannot be determined on a summary basis and will need to be the subject of evidence at trial, it seems to me that this is a further factor which militates against striking out the claim at this stage.

In paragraph 20 of the new APOC, the Claimant alleges that the Deceased lacked the testamentary capacity to make the 2009 wills. She alleges that the Deceased had no reason to make the First Defendant, whom she hardly knew, her principal beneficiary and that the Deceased’s health problems, alcoholism and isolation led her to become increasingly suspicious of others, in particular the Claimant and her daughter, and increasingly irrational or paranoid to an extent sufficient to deprive her of testamentary capacity. She alleges that the Deceased believed that the Claimant had killed Mr Lech and was poisoning her plants and (alleged for the first time in the new APOC) that the Second Defendant was her adopted daughter in whom she could place complete trust.

The Master referred in paragraphs 17 and 18 of his judgment to the well-known test in Banks v Goodfellow (1870) LR QB 548. He summarised the medical and other evidence which he regarded as not showing any want of mental capacity on the part of the Deceased. He then referred in paragraphs 19 and 20 of his judgment to the paranoid delusions alleged by the Claimant and said that it was “difficult to know what exactly to make of these suggestions which yet again stand in the face of the compelling contemporaneous records and medical records which go back over some time and suggest that there is no case from which it can be made out that the testatrix lacked capacity”. He referred to the fact that more might emerge either by way of disclosure or by way of expert evidence but did not consider that more documents were likely to emerge than those already available and took the view that any expert evidence would necessarily involve some form of reconstruction from the medical record of what the Deceased’s state of mind may have been. He did not consider that any such evidence was likely to be compelling in the face of the medical record and the solicitor’s evidence as to capacity and therefore concluded that the allegations as to want of capacity had no realistic prospect of succeeding at trial.

Mr Acton submits that the 2009 wills, and the manner in which they came to be drawn up, demonstrated that the Deceased was acting irrationally in the sense that she had no reason to make the First Defendant, whom she hardly knew, her principal beneficiary. He relies on the absence of any mention of the First Defendant in the Deceased’s previous wills, even as a substitution gift (which was instead made in favour of four named nieces of Mr Lech), coupled with the fact that the First Defendant had only recently met the Deceased, as support for his submission that what the Deceased did was irrational and surprising. He accepts that the Deceased’s medical notes do not provide any evidence of mental incapacity. However, he submits that the fact that the medical notes do not refer to the paranoid delusions alleged by the Claimant does not mean that the Deceased was not suffering from them. In other words, the fact that the doctors did not see or report evidence of such delusions does not mean that they did not occur. He referred me to paragraph 13-12 of Williams, Mortimer and Sunnucks on Executors, Administrators and Probate and submitted that delusions brought on by abuse of alcohol, mixed with substantial quantities of prescription drugs, at an advanced age combined with social isolation, are a well established medical syndrome capable of giving rise to lack of testamentary capacity. He contended that the delusions pleaded in paragraph 20 of the new APOC, in particular the belief that the Claimant had killed the Deceased’s husband, were capable of influencing the Deceased’s will in disposing of her property within the Banks v Goodfellow test. He further relied on BW-C’s reference to the Second Defendant fuelling hatred towards the Claimant and her family and the Deceased’s alleged belief that the Second Defendant was her adopted daughter in support of a submission that delusions may be encouraged by others which may be sufficient to deprive the testator of capacity.

The new APOC also contained a further paragraph (20.4) which alleged that the Deceased did not understand the extent of the property of which she was disposing by the 2009 wills. However Mr Acton made it clear in his written reply submissions that that allegation is no longer pursued. He submits that the remainder of paragraph 20 of the new APOC pleads a case which has a realistic prospect of success because the court cannot simply ignore the evidence of the paranoid delusions against the background of alcoholic abuse, taking of substantial amounts of prescribed medication, social isolation, and the possibility of the encouragement of such deluded beliefs by the Second Defendant and says that these matters are capable of establishing testamentary incapacity.

Ms Hargreaves referred me to the helpful discussion of the law of testamentary capacity in Sharp v Adam [2005] EWHC 1806 (Ch) at paragraphs 136-164. At paragraphs 136-138, the Deputy Judge (Mr Strauss QC) identified the (to some extent overlapping) elements of testamentary capacity as being that the testator must (1) be able to understand the nature of the act of making a will; (2) know which persons he should consider as possible beneficiaries; (3) be able to understand the extent of the property of which he is disposing; (4) retain sufficient command of his natural faculties to be able to consider his property and the range of possible beneficiaries and make a rational choice; and (5) be free from any disorder of the mind which poisons his affections or perverts his sense of right. As the Deputy Judge stated (at paragraph 152, a passage approved by the Court of Appeal [2006] EWCA Civ 449 at paragraph 79): “ … an irrational, unjust and unfair will must be upheld if the testator had the capacity to make a rational, just and fair one, but it cannot be upheld if he did not. It follows that the court must enquire into the reasons why a testator has disinherited his children where there is a possibility that it is due to disease of the mind”. He continued at paragraph 159:

“… there are cases in which neither the doctor who attends in accordance with the ‘golden rule’, nor the competent and experienced solicitor, both acting in a way that is beyond criticism (as I have found in this case), can apply Banks v. Goodfellow to its full extent. There are cases — and this is one of them — in which the doctor and the solicitor may be satisfied that the testator knows what he is doing in making a will and understands its effect, but cannot know one way or the other whether he has sufficient power to “discern” — or as it is put in Williams at para. 13–09 to “appreciat(e) the subtleties of the relative claims on (his) bounty ” — or whether disease of the mind has affected his feelings for those who deserve to benefit under the will or his ‘sense of right’.”

So far as the burden of proof is concerned, the Court of Appeal in Sharp v Adam (supra) said this at paragraphs 73 and 74: “The legal burden of showing that a testator is of a sound disposing mind is on those propounding the will, which in many cases will be readily discharged. The deputy judge said that, where real doubt arises from other significant evidence tending to disprove testamentary capacity, the burden of proof remains on those who seek to establish it. In any other case, the burden of proof may shift from one party to the other in the course of the case. … Cases are only decided on the burden of proof if, exceptionally, the court is unable to reach an evaluative decision on the evidence taken as a whole.”

This is a case where the Deceased disinherited her stepdaughter and step granddaughter, neither of whom were her blood relations, in favour of her nephew who was. Ms Hargreaves submitted that the 2009 wills were neither irrational nor surprising. She relied essentially on the matters which caused the Master to conclude that the Claimant’s allegations had no realistic prospect of success, in particular the clear evidence that the Deceased had fallen out with the Claimant, the medical notes which suggested the Deceased was of sound mind at the time she executed the 2009 wills and made no reference to the Deceased suffering from delusions, the fact that the First Defendant was the Deceased’s nephew and Mrs Paterson Morgan’s evidence that she was satisfied the Deceased had testamentary capacity.

I accept that these are all strong and persuasive points. Nevertheless, they involve the court reaching a decision on the evidence on a summary basis in circumstances where the court has not had an opportunity to evaluate the evidence taken as a whole. In view of the matters pleaded in paragraphs 19 and 20 of the new APOC, I do not consider that it is possible to reach a reliable conclusion on this issue on a summary basis, without the evidence of the relevant witnesses being tested in cross-examination and considered in conjunction with the available medical notes and other contemporaneous documents. My conclusion might have been different if Mrs Paterson Morgan had herself witnessed the 2009 wills and/or had provided the court with a witness statement giving detailed evidence as to the issue of testamentary capacity in support of a summary judgment application issued by the Defendants, exhibiting relevant attendance notes.

The Claimant alleged in the particulars of claim that were considered by the Master on 18 January 2017 that the First Defendant was not the nephew of the Deceased but an impostor. As the Master indicated in his judgment, this allegation of fraud turned on the question of the conclusiveness of DNA testing which the Claimant seeks to challenge. The Claimant accepts that Aaron King is the Deceased’s nephew but disputes the fact that Aaron King is the First Defendant’s half-brother. The DNA evidence was exhibited to Mr Richards’ witness statements filed on behalf of the Defendants.

The first DNA report obtained in 2015 from DNA Diagnostics Centre in Ohio was based on samples obtained from the First Defendant and Aaron King which showed with 99% certainty that they had the same father. This test was arranged by the Claimant who chose the testing centre. The report was supported by verifying statements as to the collection of the samples and a declaration from the person who took the samples. The second DNA report obtained in 2016 from the same laboratory in Ohio reached the same result. The Master stated: “The Claimant has simply refused to accept this and wishes to investigate further the integrity of the sampling procedures and the reports…It seems that this is pure “Micawberism”…there is really no realistic prospect of this being challenged. This is all the more the case since there is in evidence correspondence between Peter King, the First Defendant’s father, and his mother, showing an intimate relationship, although again the Claimant refused to accept this and has in fact alleged there was no such relationship. This has led to yet further evidence by way of correspondence from Peter King, the First Defendant’s father, referring to the First Defendant as his son and signing as ‘dad’. There are also in evidence photographs of the First Defendant at a family wedding which go again to show a familial relationship”. Having summarised the evidence, he concluded: “It is regrettable that the Claimant will not face the reality of all this evidence which is compelling. Yet in the face of it the Claimant persists in making the most serious allegations that can be made in this court of fraud, as to which there is in my judgment not one shred of evidence or any basis whatsoever.” The Master therefore struck out this allegation.

I agree with the Master that there is no realistic prospect of this evidence (being the DNA evidence and the correspondence between on the one hand the First Defendant’s father and mother and on the other the First Defendant and his father) being successfully challenged.

On this appeal, the Claimant seeks permission to reinstate this allegation of fraud relying on the matters pleaded in paragraph 22 of the new APOC. The highest that Mr Acton now puts the case on her behalf is that the Claimant “suspects that the First Defendant was not the nephew of the Deceased, and puts the First Defendant to proof as to his identity”. It is alleged that “due to at least two breaches in the chain of custody in Dubai, it was not established that the DNA sample tested (and then re-tested) as being the sample provided by Aaron was in fact his sample. It could have been a sample provided by a member of the First Defendant’s family”. It is then said that the Claimant “is ready and willing to abide by a fresh DNA testing process on Aaron and the First Defendant duly carried out by a recognised UK agent on the instructions of both parties in accordance with all requisite procedures including the necessary strict chain of custody and the testing in a UK laboratory with an ISO 17025 registration so as to ensure the integrity of the testing process. In the absence of this, on the basis of the evidence currently available, it is not established that the First Defendant was the Deceased’s nephew”.

In his skeleton argument in support of this appeal Mr Acton accepts that “this claim is the most vulnerable to a strike out” and that “some of the wide-ranging allegations and speculations in the Claimant’s pleading go beyond what it would be proper to plead in support of this allegation”. In his written reply submissions, he accepts that there is not sufficient evidence for him to be able to positively allege that the First Defendant is an impostor. He therefore does not make a positive allegation of fraud in the new APOC. Instead the Claimant now makes an equivocal allegation of suspicion and puts the First Defendant to proof of his parentage. He recognises that this is an “unconventional pleading” but submits that it is an appropriate pleading in the circumstances. I do not agree. It is well established that allegations of fraud, being very serious in nature, must be distinctly alleged and distinctly proved. As stated by Lord Hope in Three Rivers (supra at paragraph 55), a party is not entitled to a finding of fraud if his pleading does not allege fraud directly and the facts relied on are equivocal. More fundamentally, like the Master, I consider that there is not a shred of evidence to support the Claimant’s alleged suspicion that the First Defendant is not who he says he is. His solicitor has exhibited more than sufficient evidence to establish that this suspicion is entirely without foundation. I therefore refuse the Claimant’s application for permission to include a fraud claim alleging that the First Defendant is an impostor, whether as formulated in paragraph 22 of the new APOC or at all, in the claim going forward.

Two new claims that were not before the Master below are now sought to be raised in the new APOC.

Paragraphs 1 to 11 of the new APOC plead a case of mutual wills in relation to the Deceased’s and Mr Lech’s 2007 wills (as well as their preceding 2006 wills). The Claimant contends that by executing the 2007 wills in the terms they did, it was Mr Lech’s and the Deceased’s mutual intention that, after the death of the survivor of them, their estate would be inherited by the Claimant and Carmen in the proportions provided for and that each of them agreed they would not revoke their 2007 will following the death of the first to die with his or her 2007 will unrevoked. She further contends that if the Deceased made a further valid will thereby revoking her 2007 will following Mr Lech’s death with his 2007 will unrevoked, the Deceased did so in breach of her agreement with Mr Lech not to do so, with the result that her executors take her estate under any such new will on constructive trust to distribute the same so as to give effect to the terms of her 2007 will.

The authorities on mutual wills establish that although the agreement may be set out in the wills themselves, it may also be found from extrinsic evidence. The fact that there are identical wills to the same effect is a relevant circumstance although not enough of itself. The whole of the evidence must be looked at and the existence of the requisite agreement can be proved by inferences drawn from facts, rather than by direct evidence of the agreement itself (see Fry v Densham-Smith [2010] EWCA Civ 1410; [2011] WTLR 387).

Ms Hargreaves realistically accepts on behalf of the Defendants that this mutual wills claim is properly arguable and, in circumstances where the Claimant has obtained permission to amend her particulars of claim in respect of the pursued claims, does not oppose the application for permission to amend in order to make this additional claim on the usual terms as to costs.

Paragraphs 12 to 15 of the new APOC seek to rely upon an alleged agreement between the Claimant and the Deceased made at some time between the making of the 2006 wills and the 2007 wills whereby it was agreed that if the Claimant persuaded her father to execute a new will leaving a share portfolio to the Deceased, the Deceased would execute her own new will leaving her estate to the Claimant and Carmen in the terms subsequently contained in her 2007 will, and would not revoke the same. Mr Acton submits that this is the same sort of agreement as is recognised by the imposition of a constructive trust between those making mutual wills. The agreement is between the beneficiary and one of the testators, rather than between two testators, but he submits this should make no difference in principle and that this is therefore a properly arguable extension to the doctrine of mutual wills.

Ms Hargreaves submits that the claim pleaded at paragraphs 12 to 15 of the new APOC is highly questionable as a matter of law in seeking to extend the doctrine of “mutual wills” to a situation which does not involve mutual wills at all and in which it is alleged that a constructive trust arises in circumstances where it is conceded that the Claimant has not acted to her detriment. However, she realistically accepts that the court is likely to be unwilling to determine this point of law on a summary basis in circumstances where the new claim relies on a development to current jurisprudence, its determination would not be decisive of all of the issues between the parties because the claim for mutual wills will need to be decided in any event and accordingly little or no savings in cost will ensue. For all these reasons, I am prepared to give the Claimant permission to amend in order to advance this further claim on the usual terms as to costs.

The Claimant submits that the Master’s decision to award costs against her on the indemnity basis was clearly wrong. The transcript of the oral submissions following the conclusion of the Master’s judgment indicates that Ms Hargreaves invited the court to make the order for costs on the indemnity basis in light of the court’s finding that the very serious fraud allegations should not have been made. The Master indicated that he would require costs to be paid on the indemnity basis, stating that it followed from the fact that in his view none of the claim had any realistic prospect of success.

I was referred by Mr Acton to the note at pages 1594-1597 of the 2017 White Book at 44x.4.3 and in particular to the passage at the top of page 1595 which states: “In a case where a counterclaiming Defendant alleged fraud which was shown to be deeply flawed from the very commencement of the counterclaim, and where the allegation rested on an assumption which was so improbable as to be far-fetched, the court made an order for costs on the indemnity basis: National Westminster bank plc v Rabobank Nederland”. I consider that the Claimant’s allegation that the First Defendant is an impostor falls into this category. Nevertheless, in light of my decision that the appeal should be allowed on the grounds that there was a serious procedural irregularity and that the claims in relation to undue influence, want of knowledge and approval and lack of testamentary capacity, as now pleaded in the new APOC, should be permitted to proceed, I do not think it is appropriate for the award of costs on the indemnity basis to stand.

For the above reasons, I allow this appeal and give permission to the Claimant to amend her particulars of claim in the form indicated in this judgment. I shall hear the parties on the question of costs and any other consequential matters.