Robert Hurst v Evelyn Green & Ors

On 20 December 2021 I made an Order refusing an application made by the Applicant, Mr Robert Alfred Hurst (‘Mr Hurst’), for permission to make the following series of applications:

I made that Order in my capacity as the (or one of the) designated Judges of an Extended Civil Restraint Order made against Mr Hurst by Fancourt J. in his Order dated 28^th May 2021.

The two judgments of Fancourt J. are important. The first, dated 5 February 2020 (the neutral citation for which is [2020] EWHC 344 (Ch)), I will refer to as ‘the First Judgment’ and the second, dated 28 May 2021 (the neutral citation for which is [2021] EWHC 1767 (Ch)) I will refer to as ‘the Second Judgment’.

In my Order of 20 December 2021, I set out brief reasons for my refusal. My conclusions were:

Later that day, Mr Hurst sent a letter to my clerk in which he requested that I either reconsider my decision or grant permission to appeal from it. In that letter he set out a detailed set of points in which he alleged my reasons contained errors. By the time I came to consider his letter, I was already engaged in pre-reading for a long and complex trial so I made an Order dated 5^th January 2022 which extended the time within which Mr Hurst would have to file any application for permission to appeal, pending my reconsideration and/or consideration of his application for permission to appeal. Due to the passage of time, I have taken the somewhat unusual step of setting out my reconsideration in this Judgment.

Some of the points raised by Mr Hurst in his letter of 20^th December 2021 are trivial:

Mr Hurst’s letter gathers his more substantive points under three headings, which I consider in turn below. Before doing so, it is necessary for any reader of this judgment to understand some of the extensive history of this matter. Important parts of it are set out in the First Judgment of Fancourt J. dated 5 February 2020, when dealing with Mr Hurst’s appeal from the decision of ICC Judge Prentis on 22 July 2019 to dismiss Mr Hurst’s first application to annul his bankruptcy. I proceed on the basis that the whole of that judgment is incorporated here.

Fancourt J. continues the history at [10]-[14] of his Second Judgment when the Judge was dealing with Mr Hurst’s third attempt to annul his bankruptcy. On that occasion, Mr Hurst deployed the two SRA letters (dated 24 September and 20 December 2019) which he had not previously deployed on the hearing of his appeal before Fancourt J. in February 2020.

So, to summarise, Mr Hurst has already tried three times to annul his bankruptcy. All three previous attempts were founded on allegations that Master Price was misled into granting summary judgment against Mr Hurst:

On the same day as he delivered the Second Judgment, Fancourt J. also made the ECRO against Mr Hurst.

Mr Hurst brings this application on the basis of his account of a telephone call he had with the Second Respondent on the afternoon of Friday 9^th July 2021. In his witness statement dated 12 July 2021, Mr Hurst described the conversation in the following terms (in which HH is the mother of Mr Hurst and Mrs Green):

“27.

I have for the past few months been endeavouring to speak to my sister (Mrs Green) with a view to restoring our relationship.

28.

When I called her mobile phone on Friday afternoon, 9 July 2021, it was answered by Mr Green. When I requested Mr Green to pass the phone on to Mrs Green, he refused to do so.

29.

Mr Green proceeded to making various emotive remarks, and shouted at me in the manner to which HH and I had become accustomed. See paragraphs 16, 19, 23, 30 – 35, 40, 47 – 52 of my Witness Statement dated 21 April 2016 [110 – 115].

30.

In the course of our discussion, Mr Green informed me that:-

a)

HH had never travelled to BLP’s offices.

b)

HH only attended two meetings with BLP (i.e. on 7 and 8 July 2003).

c)

He was unable to recall whether Mr Mablin attended the meeting on 7 July 2003 (as averred in paragraph 6 of Mr Mablin’s Witness Statement dated 23 March 2016 [40], in paragraph 6 of that dated 18 June 2016 [122], and in paragraph 12 of that of Mr Green dated 18 June 2016 [126].

d)

Even if Mr Mablin did not attend the meeting with HH on 7 July 2003, he was certainly aware of the proposed arrangements.

31.

Mr Green attempted to justify Mr Whitehead’s representation as to HH’s attendance at a “number of meetings” on the basis that she did attend two meetings (i.e. those on 7 and 8 July 2003).”

One curiosity is that in Mr Hurst’s skeleton argument of the same date as his witness statement, he summarises what Mr Green told him as follows:

“9.

On 09/07/2021, Mr Green informed me that:-

a)

There was definitely no meeting at BLP’s offices on 07/07/2003.

b)

He was unable to recall whether Mr Mablin attended whatever meeting might have taken place on 07/07/2003. [That inability to recall on the part of Mr Green should be compared to his averment in paragraph 12 of his Witness Statement dated 18/06/2016 [126] to the effect that Mr Mablin definitely attended the meeting on 07/07/2003.]

c)

HH definitely attended no meetings with BLP prior to 07/07/2003. [That admission perhaps explains the absence of documents substantiating BLP’s assurance dated 16/09/2014 as to “a number of meetings” apparently attended by HH [29] and its subsequent representation to the Solicitors Regulation Authority (SRA) that that assurance was based on “instructions from its client” [208]].”

Mr Hurst exhibited an email timed at 19.04 on 9^th July 2021 headed ‘OUR TELEPHONE CONVERSATION THIS AFTERNOON’ and I quote the key passages here:

‘Although you raised many irrelevant matters, the only point of relevance is the number and location of the many meetings which, according to Paul Whitehead’s letter dated 16 September 2014, had been attended by my mother with BLP prior to her execution of the trust documents on 8 July 2003.

You told me that my mother had only attended two meetings with BLP, both at her house. You were unable to recall whether the first meeting (i.e. that at 4.30 p.m. on Monday 7 July 2003) was also attended by Ian Mablin. There was definitely no meeting at BLP’s offices, as is alleged by Ian Mablin in paragraph 6 of his Witness Statement dated 18 June 2016.

The representations contained in Ian Mablin’s Witness Statement dated 18 June 2016 and in Paul Whitehead’s letter dated 16 September 2014 were therefore false.’

On 12 July 2021, Mr Hurst sent a draft of his witness statement to the solicitors for the Respondents and invited them to respond within 7 days. They did so, contending (after quoting from the first Judgment of Fancourt J.) that his intended application was totally without merit for three reasons, the first of which was that the accuracy of his summary of the call with Mr Green, as set out in [30] was ‘not admitted’. Mr Hurst draws attention to that, and to the fact that Mr Green has not made or filed any witness statement responding to his account of the telephone call.

In his Skeleton Argument in support of this application, Mr Hurst submitted (1) that when deciding to whether to grant permission, I should be guided by the principles enunciated by Etherton J (as he then was) in Dawodu; but also (2) that I should not endeavour to decide whether his mother was in fact subject to undue influence; and (3) that I should determine whether ‘if there had been a properly conducted judicial process’, Master Price would have granted summary judgment or ordered a trial.

The relevant test from the Dawodu case was stated by Etherton J. as follows:

“My only qualification to the summary by Warner J is that the case law has established that what is required before the court is prepared to investigate a judgment debt in the absence of an outstanding appeal, or an application to set it aside, is some fraud, collusion or miscarriage. The latter phrase is, of course, capable of wide application, according to the particular circumstances of the case. What, in my judgment, is required is that the court be shown something from which it can conclude that had there been a properly conducted judicial process, it would have been found, or very likely would have been found, that nothing was, in fact, due to the Claimant. It is clear that in those circumstances, the court can enquire into the judgment and the judgment debt, even though the debtor himself has previously applied to have the judgment set aside, and even though that application has been refused and that refusal has been affirmed by the Court of Appeal – see in Re Fraser, ex-parte Central Bank of London) [1892] 2 Q.B. 633.”

In addition to citing that passage from Dawodu, in his judgment in this case ICC Judge Prentis also referred to the case of Royal Bank of Scotland v Highland Financial Partners LP [2013] EWCA Civ 328, which sets out the high test that applies to similar effect, where a judgment is sought to be set aside on the basis that it was secured by fraud. The relevant part of the judgment of the Court of Appeal is as follows:

“First, there has to be a "conscious and deliberate dishonesty" in relation to the relevant evidence given, or action taken, statement made, or matter concealed, which is relevant to the judgment now sought to be impugned. Secondly, the relevant evidence, action, statement or concealment performed with conscious and deliberate dishonesty must be "material". "Material" means that the fresh evidence that is adduced after the first judgment has been given is such that it demonstrates that the previous relevant evidence, action, statement or concealment was an operative cause of the court’s decision to give judgment in the way that it did. Put another way, it has to be shown that the fresh evidence would have entirely changed the way in which the first court approached and came to its decision. Thus, the relevant conscious and deliberate dishonesty must be causative of the impugned judgment being obtained in the terms that it was. Thirdly, the question of materiality of the fresh evidence is to be assessed by reference to its impact on the evidence supporting the original decision, not by reference to its impact on what decision might be made if the claim were to be retried on honest evidence.”

Applying Dawodu, the question is (as Fancourt J. formulated it at [25] of his first judgment) whether it is realistically arguable that the different factual account relied on would have caused or would very likely have caused Master Price to reach the opposite conclusion, namely that undue influence was proved and no debt was due.

I propose also to consider an alternative test which is easier for the Applicant to satisfy, namely whether the different factual account relied on would have caused or would very likely have caused Master Price to refuse summary judgment and to have sent Mr Hurst’s claim of undue influence to a trial.

In approaching the tests I have set out, I am struck by certain facts to which Fancourt J. referred in his First Judgment as being taken into account by ICC Judge Prentis namely that before Mrs Hurst entered into the scheme:

Fancourt J. also relied on those facts in [59]-[61] of his first Judgment, and they naturally form part of his conclusions in that judgment:

59.

There is no dispute that the basis of the scheme and the involvement of BLP was being talked about openly and that the Appellant was invited to attend a meeting and become a trustee, but declined to do so. The purpose of the scheme was to benefit family members generally by avoiding a tax liability on the death of Mrs Hurst. Mrs Hurst would be protected by having a life interest in the property. That is the kind of tax planning that routinely takes place between family members. There is no dispute that a meeting with a lawyer at BLP took place on 7 July 2003, at which Mrs Hurst’s accountant, Mr Mablin, was present. A letter of advice to Mrs Hurst was prepared by BLP that day, but there is no evidence one way or the other whether Mrs Hurst received it the next day, or at all. The solicitor from BLP attended a meeting with Mrs Hurst the next day, at which the Greens were present. The scheme documents were signed later that day by Mr Mablin.

60.

This was not a case of presumed undue influence, where independent legal advice was required to rebut the presumption. The onus of proof was on the Appellant to prove that undue influence in some form was actually used, or must have been used, to cause Mrs Hurst to execute the scheme documents. Availability of legal advice may be a relevant factor among others, but there is no requirement for independent legal advice, or any legal advice.

61.

The Judge’s conclusion was that the Appellant’s gloss on the evidence, as he called it, was incorrect. He held that the totality of the evidence established that: there were discussions about the scheme; there was legal advice; there was a meeting with the lawyer and accountancy advice for Mrs Hurst specifically; and there was evidence of a particular motive for Mrs Hurst to enter into the scheme. Although the final conclusion in the judgment is perhaps not as clearly expressed as it might be, the Judge reaches the conclusion that there is no evidence or inference of any actual undue influence and, therefore, no arguable case.

62.

I cannot find any fault in the Judge’s evaluation of the evidence. The Appellant contends that the circumstances of a solicitor attending on an elderly lady at her home without a prior meeting, with documents to be signed, in the presence of beneficiaries of the transaction, is itself undue influence. It may well be in a particular case, but not on the facts of this case, as they were summarised by the Judge. This was a family tax-planning transaction, of the kind that many families enter into in order to try to mitigate tax liability, even if the particular scheme in this case was more complex and at greater risk of being struck down. Its advantage for Mrs Hurst, compared with a potentially exempt transfer, was that Mrs Hurst retained a life interest in her property. To echo the words of Lord Nicholls in the Etridge (No 2) case, the transaction could readily be accounted for by the ordinary motives of ordinary persons in the relationship of parent and child and so was not such as to excite the protective interests of equity.

63.

There is no evidence that Mrs Hurst was unfairly coerced, or misled, or taken advantage of by the Respondents, or that any other kind of undue influence was used on her, and the Judge’s conclusion is sound. I must, therefore, dismiss the appeal for the reasons that I have given.’

I also take into account and address specifically the three topics which are the subject of Mr Hurst’s invitation to me to reconsider, namely 1) the ‘Alleged Meeting at BLP on 07/07/2003’; 2) BLP’s letter dated 16/09/2004 and 3) ‘Previous Judicial Decisions’.

On the first topic, Mr Hurst’s key submission is that, as a consequence of what Mr Green said on 9^th July 2021, as to the attendance or otherwise of Mr Mablin at the meeting on 7 July 2003, there is now ‘a dispute’ and that therefore, paragraph [59] in the first judgment of Fancourt J. ‘must therefore be reviewed’.

On the second topic, Mr Hurst’s arguments appear to me to be based on his misunderstanding of the First Judgment. Mr Hurst alleges that paragraph 4 of the reasons given in my Order dated 20^th December was ‘factually incorrect’ because ‘Paragraph 45 of Fancourt J.’s first Judgment did not address the letter dated 16 September 2014’. However, when giving his First Judgment, Fancourt J. clearly had BLP’s letter dated 16 September 2014. He plainly considered it because, in paragraph 46 of his judgment he said ‘to the extent it is inconsistent with the Appellant’s new evidence, it falls to be disregarded.’ So Fancourt J. was dealing with the matter before him on the basis of the Appellant’s evidence and disregarding the letter to the extent that it was inconsistent.

Mr Hurst also makes a series of submissions (incorporating expressly a number of paragraphs from his Skeleton Argument dated 27^th July 2021), but in essence what he submits is that if what Mr Green told him on 9^th July 2021 is correct then he alleges (and I quote here Paragraphs 40(a) to (d) in his Skeleton Argument dated 27^th July 2021):

At this point in his Skeleton Argument dated 27 July 2021, Mr Hurst refers to paragraphs 4(a) to (p) of his Skeleton dated 22^nd March 2021. This set of sub-paragraphs read as follows:

“4.

RELEVANT HISTORY

a)

Since the death of my father (John Hurst) on 06/07/1985, Mr Green insisted on assuming total control over the late Mrs Hurst’s affairs. See paras 13 – 54 of my W/S dated 21/04/2016 [110 – 115] and paras 2 – 3 of my letter to Mr Green dated 03/09/2014 [25].

b)

As part of that control, Mr Green required Mrs Hurst to commit perjury in an Inland Revenue Affidavit. See para 18 of my W/S dated 21/04/2016 [110].

c)

Mr and Mrs Green had frequent and ferocious arguments with Mrs Hurst and myself.

d)

According to the evidence, Mr and Mrs Green (and possibly Mr Mablin) met Ms Tolhurst of BLP on 07/07/2003. See para 6 of I Mablin’s W/S dated 18/06/2016 [122] and para 12 of that of Mr Green of the same date [126].

e)

They instructed her at that meeting to engross the documents in suit. See manuscript note headed “4.30 Monday 7^th”. [102]

f)

There is no evidence of any substantive advice having been given at that meeting. See para 18 of my W/S dated 30/09/2020 [11].

g)

There is a conflict of evidence as to the location of the meeting and as to whether it was attended by Mrs Green. See paras 19 – 24 of my W/S dated 30/09/2020 [11 – 12].

h)

According to what Mrs Green told me on 15/08/2018, that meeting was not attended by Mrs Hurst. See paras 18 – 25 of my W/S dated 21/05/2019 [162 – 164] and paras 25 and 52-53 of that dated 30/09/2020 [12 and 16].

i)

No witness statement has since 21/05/2019 been signed by any of the Respondents or Ms Tolhurst evidencing the alleged attendance of Mrs Hurst at that meeting on 07/07/2003.

j)

On 08/07/2003, Mr and Mrs Green and Ms Tolhurst appeared at my mother’s house, and requested her to execute the documents in suit. [49 – 101]

k)

In para 31 of his Judgment dated 22/07/2019, ICC Judge Prentis expressed the view that it “seems inherently implausible and is inconsistent with the evidence that I have already identified to think that a solicitor would simply turn up and request execution without more of these documents.” [181]

l)

In para 42 of his Judgment dated 05/02/2020, Fancourt J referred to the “improbability that a solicitor from a well-respected City firm would act in that way.” [196]

m)

Although I share the surprise expressed by ICC Judge Prentis and Fancourt J to the effect that a Solicitor would simply turn up at the door of a vulnerable 81-year old lady and request her to sign a series of complicated documents on the dotted line, that is, according to the evidence now in the Court’s possession, what probably happened.

n)

It is consistent with the habitual practice of Mr Green in requesting Mrs Hurst to sign documents on the dotted line. See paras 13 – 19 of my W/S dated 21/04/2016. [110]

o)

It should be noted that Ms Tolhurst (whose surname is now Dunlop) was in 2003 a relatively junior solicitor who left BLP in approximately 2005. Although the SRA website indicated in 2019 that she was employed by a Kent firm, she does not now appear to be in practice.

p)

Master Price, ICC Judge Prentis and Fancourt J were all acting on the basis of an unqualified assurance from a Partner of a well-respected City firm to the effect that Mrs Hurst had been “present at a number of meetings” with BLP prior to 08/07/2003. They did not question the veracity of that assurance. See para 4(3) of Counsel’s Skeleton dated 28/07/2016. [133]”’

In his third topic, Mr Hurst seeks to dismiss the significance of all the previous judgments in which his allegations have been considered. He attempts to do so by highlighting three points which he says were admitted by Mr Green during the telephone conversation on 9 July 2021 namely:

Mr Hurst’s point is that Mr Green has not made any witness statement disputing Mr Hurst’s version of that conversation.

Having explained each of the three topics which Mr Hurst seeks to raise in his letter of 20 December 2021, I now draw my conclusions on those topics, individually and collectively.

On the first topic, in my view, there is no requirement for a review of [59] to take place. The principal reason is that the content of the conversation on 9^th July 2021 does not provide any foundation for getting an argument of undue influence on its feet. Nor does it establish any deceit.

Having considered all of Mr Hurst’s very detailed points, I can take this second and third topics together. Despite the tortuous detail which Mr Hurst seeks to invoke, there is nothing in his allegations to persuade me that Master Price would have reached any different conclusion. Furthermore, it seems to me that the latest allegations are just a very slight variation on what other Judges have considered before, at various levels. The allegation that Mrs Hurst did not attend a meeting at BLP’s offices at any time was considered in his first attempt to annul his bankruptcy.

Overall, however, Mr Hurst seeks to advance a case that an associate solicitor from BLP turned up unannounced at Mrs Hurst’s door on 8^th July 2003 with Mr and Mrs Green and requested her to sign a series of complicated documents, without Mr Mablin having advised her. This basic case seems to me (a) to be one which has been considered before, numerous times and at various levels: at the very least, it was expressly considered by Fancourt J. in his First Judgment; (b) it is a case which is, in my view, completely inconsistent with the facts I identified in paragraph 20 above, which bear repetition at this point:

Furthermore, (c) it seems clear that Mr Mablin, as the long-standing accountant to Mrs Hurst (and her husband before he died), was involved throughout. It does not seem credible that the first he knew of the scheme was when he signed off the documents later on the 8^th July 2003, which is what Mr Hurst’s basic case seems to entail.

Bearing in mind the long campaign which Mr Hurst has waged against Mr and Mrs Green, it is not entirely surprising that Mr Green would not want to spend yet more money making a witness statement about that conversation. However, the three points which Mr Hurst highlights namely:

It can be seen therefore, that there is essentially nothing new in Mr Hurst’s latest application. It rests on the same regurgitated points, from which Mr Hurst seeks to draw what Fancourt J. characterised (correctly in my view) ‘inferences of a highly speculative nature’.

Therefore, I remain of the view which I expressed in my Order dated 20^th December 2021 (see paragraph 4 above). Accordingly I refuse the permission which Mr Hurst seeks, to apply for a fourth time seeking to annul his bankruptcy. In my view, this application was totally without merit.

Finally, in the alternative to his application for reconsideration, Mr Hurst sought permission to appeal, which I refuse.

A review of the original judgment of Master Price reveals a very long-running and bitter dispute between Mr Hurst and Mr and Mrs Green. It also reveals that Mr Hurst was ready, even at that point, to engage in unsupported surmise to try to establish a case of undue influence being exerted over his late mother. As Fancourt J. observed at [26] of his Second Judgment, Mr Hurst is unable to be objective and can only see a conspiracy involving his brother-in-law and sister and others. His obsession has consumed more than his fair share of judicial resources already.

After I had written all but the last three paragraphs of the above, on 1^st April 2022 Mr Hurst sent me two further documents:

Since I have refused Mr Hurst permission to appeal, he has a period of 21 days from the date of this judgment to file any application for permission to appeal with the Court of Appeal.