England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CHANCERY DIVISION
(HIS HONOUR JUDGE WEEKS QC)

		Royal Courts of Justice Strand London, WC2 Thursday, 24th October 2002

Thursday, 24th October 2002

1. LORD JUSTICE JONATHAN PARKER: This is an application by Mr Terence Gerald Fitzgerald, the defendant in the action, for permission to appeal against an order made by His Honour Judge Weeks QC, sitting as a Deputy High Court Judge in the Chancery Division, on 16 May 2002. By that order, Judge Weeks QC dismissed Mr Fitzgerald's appeal against an order made by Deputy District Judge Woodburn in the Bristol District Registry on 29 November 2001. By the latter order, the Deputy District Judge acceded to an application by the two claimants in the proceedings, Mr Jeremy Wright and Mr Brian Rowson, as trustees of the Will dated 19 June 1992 of the late Poppaea Fitzgerald deceased, that Mr Fitzgerald be replaced as trustee of the Will.
2. The appeal for which permission is sought is thus a second appeal, to which section 55(1) of the Access to Justice Act 1999 and CPR 52.13 apply. Accordingly, permission will not be granted unless the appeal would raise an important point of principle or practice, or there is some other compelling reason why the Court of Appeal should hear it.
3. Mr Fitzgerald is not represented on this application, and he has not appeared in person. He is currently serving a sentence of imprisonment.
4. The background to the application is, in summary, as follows.
5. Mr Fitzgerald is the son of the late Mrs Poppaea Fitzgerald. By her Will dated 19 June 1992 Mrs Fitzgerald appointed as her executors and trustees Mr Fitzgerald and the partners at the date of her death in Messrs Peter Peter & Wright, Solicitors, of Grenville House, the Quay, Bideford, Devon. She gave her estate, subject to one specific bequest, to her trustees upon trust for sale and conversion, and to pay her debts and executorship expenses and any inheritance tax. She declared that her trustees should stand possessed of the residue of the trust fund upon trust to pay the income of it to a Mr Gilbert Bate during his life. She further declared that after Mr Bate's death her trustee should hold the trust fund on trust firstly to pay legacies of £10,000 to Mr Fitzgerald and £2,000 to her daughter, Helen Larkin, and subject thereto to pay the residue of the trust fund to Mr Fitzgerald providing that he survived her.
6. Mrs Fitzgerald died on 27 December 1992, and probate of her Will was granted on 3 August 1993 out of the Bristol District Probate Registry to Mr Fitzgerald, Mr Wright and Mr Rowson (Mr Wright and Mr Rowson being partners in Messrs Peter Peter & Wright). Mr Gilbert Bate survived Mrs Fitzgerald, and accordingly became entitled to a life interest in the trust found.
7. On 20 December 1994 a confiscation order was made against Mr Fitzgerald pursuant to the Drug Trafficking Act 1986 in a sum in excess of £58,000. On 24 March 1998 a receiver of Mr Fitzgerald's property was appointed in aid of the confiscation order. The receiver is an accountant, Mr Lee Manning. Mr Fitzgerald was at that time, as he remains, in prison.
8. On 13 November 2000 Mr Bate died, and the trust fund fell to be distributed in accordance with the Will.
9. One of the assets of the trust fund is a leasehold flat at Flat 3 Westcoombe, Torrs Park, Ilfracombe, Devon. At about the time of Mr Bate's death, or shortly thereafter, the landlord of the flat sought to recover from the estate certain monies which the landlord had allegedly expended on the repair and maintenance of the flat, on the footing that such monies were recoverable under the terms of the lease. The amount in question is some £2031. Mr Wright and Mr Rowson investigated the claim and concluded that it was a good claim which ought to be paid. Mr Fitzgerald, on the other hand, maintains that the landlord is not entitled to any part of the sum which it claims. The result was that the landlord was not paid, and it threatened proceedings.
10. On 9 January 2001 Mr Wright and Mr Rowson applied to the court under section 41 of the Trustee Act 1925 for the appointment of a new trustee, a Mr Alastair McNeil (also a partner in Messrs Peter Peter & Wright) in place of Mr Fitzgerald. Section 41 provides that the court may appoint a new trustee in place of an existing trustee whenever it is expedient to do so, and it is found inexpedient, difficult or impractical to do so without the assistance of the court.
11. On 13 March 2001 the court gave judgment in favour of the applicants, but that judgment was later set aside as being defective on procedural grounds. The application was adjourned. In the meantime, Mr Fitzgerald had issued his own application seeking the removal of Mr Wright and Mr Rowson as trustees. Negotiations took place with a view to a compromise of these applications, but no concluded compromise was reached. Accordingly, on 29 July 2001 both applications came before Deputy District Judge Woodburn as effective applications. In the result, the Deputy District Judge acceded to the claimants' application and appointed Mr McNeil as trustee of the Will in place of Mr Fitzgerald. It is to be noted that Mr Fitzgerald was represented by counsel before the Deputy District Judge, and that counsel argued both applications on his behalf. No application was made for any adjournment.
12. On 13 February 2002 Mr Fitzgerald filed an appellant's notice out of time. On 22 March 2002 His Honour Judge Weeks QC refused an extension of time to appeal, on the papers. On 16 May 2002 Mr Fitzgerald renewed his application orally to His Honour Judge Weeks QC. On this occasion, the judge was satisfied that time should be extended, and he accordingly treated the application as a substantive appeal. In the result, he upheld the decision of the Deputy District Judge. He said (at page 4G to H of the transcript):

"It follows that not only am I not satisfied that the District Judge's decision was wrong; it seems to me right, and I ought to affirm it."

The judge then turned to the specific grounds of appeal set out in section 7 of Mr Fitzgerald's appellant's notice, (grounds which are repeated in his appellant's notice on this application) and dealt with each ground in turn. The judge concluded, in effect, that there was no substance in any of those grounds of appeal. In particular, he dismissed Mr Fitzgerald's complaints that he and his advisers had received insufficient notice of the hearing before the Deputy District Judge on 29 November 2001, pointing out that (as I have already related) Mr Fitzgerald was represented by counsel on that occasion, who argued the applications and made no application for an adjournment.

13. Judge Weeks QC concluded at page 7B of the transcript of his judgment:

"In my judgment, it was quite right to replace Mr Fitzgerald with another trustee."

14. As already indicated, Mr Fitzgerald now applies for permission to appeal against the order made by Judge Weeks and he does so on the same grounds as he advanced to the judge. Mr Fitzgerald has submitted a further written argument in support of the present application which I have considered. I also consider that it is appropriate, notwithstanding Mr Fitzgerald's absence due to his imprisonment, that I should the deal with this application in his absence.
15. In my judgment, there are no grounds for interfering with the orders made by the Deputy District Judge and by His Honour Judge Weeks QC. I agree with the judge that the case for removing Mr Fitzgerald as trustee of the Will and appointing another in his place is overwhelming. Like the judge, I have carefully considered the various grounds of appeal upon which Mr Fitzgerald relies, and I have come to the clear conclusion that there is no substance in any of them. Still less, in my judgment, does the proposed appeal raise any important point of principle or practice, nor is there in my judgment any compelling reason why the Court of Appeal should hear it.
16. The application is accordingly dismissed.
Order: Application dismissed.