Jersey Unreported Judgments

Estate - application by the first defendant to strike out claim of second and third plaintiffs.

[2016]JRC106

Royal Court

(Samedi)

15 June 2016

Before     :		Advocate Matthew John Thompson, Master of the Royal Court
Between	A		First Plaintiff
	K		Second Plaintiff
	L		Third Plaintiff
And	H		First Defendant
	John Bisson and Others (practising under the name and style of Appleby)		Second Defendant

Advocate S. A. Franckel for the First Defendant.

Advocate D. R. Wilson for the Second Defendant.

Advocate D. S. Steenson appointed as amicus curiae for the Plaintiffs.

CONTENTS OF THE JUDGMENT

		Paras
1.	Introduction	1-2
2.	Background	3-21
3.	The adjournment application	22-32
4.	The Defendants' submissions	33-36
5.	The second and third plaintiffs' submissions	37-51
6.	Decision	52-76

judgment

the master:

Introduction

1.        This judgment represents my decision in respect of the application by the first defendant to strike out the entirety of the claim of the second and third plaintiffs on the basis that it discloses no reasonable cause of action.  The first defendant's summons was supported by the second defendant who also issued an alternative summons requiring the second and third plaintiffs to provide further and better details of their case if I was not minded to strike out the claims of the second and third plaintiffs. 

2.        The defendants' summonses were heard on Thursday 12^th May, 2016.  At the commencement of the hearing the second plaintiff on his own behalf and on behalf of the third plaintiff made an application for an adjournment of the defendants' summons.  The application for an adjournment was refused.  This judgment therefore also sets out my reasons for refusal of the adjournment. 

Background

3.        The general background to the present proceedings is set out in the restricted judgment reported at In the matter of II [2015] JRC 194 (the 'Amicus judgment') relating to the appointment of an Amicus in the present matter and the scope of the authority of the Amicus.  For purposes of this judgment I adopt paragraphs 3 to 12 of the Amicus judgment. 

4.        Paragraphs 3 to 12 state as follows:-

"3.      Proceedings were commenced by the plaintiffs in March 2012.  It is a matter of real regret that these proceedings have not yet reached a trial date and are some way from doing so.  I will deal later in this judgment why this is the case. 

4.        The proceedings commenced were brought by A as first plaintiff and her two children K and L, the second and third plaintiffs.  For ease of reference I will refer to them in this judgment as A, K and L.  L was a minor when the action was first commenced, represented by A as guardian ad litem, but L subsequently came of age. 

5.        The first defendant in the proceedings is H the brother of A.  The second defendant is the law firm Appleby. 

6.        The essence of the claim brought by A and K, initially for themselves and by A as guardian for L against the first defendant relates to the estate of the mother of A and H, whom I will refer to as J. 

7.        In 2008 J made wills of her moveable and immoveable estate with the assistance of the second defendant.  These Wills left the whole of the immoveable and moveable estate of J to H. 

8.        The plaintiffs' claim that J was concerned about the 2008 wills as they did not protect the interests of the plaintiffs.  The plaintiffs further allege that H assured J that notwithstanding the Wills he would divide the estate equally with A provided that A's divorce had been completed and, if it had not been completed, the first defendant would hold half of the estate on trust for A. 

9.        The plaintiffs further criticise H for his conduct prior to J's death in 2011. 

10.      The plaintiffs therefore claim from H half the value of J's former home, in the sum of £500,000 plus her légitime of J's moveable and immoveable estate. 

11.      The claims against the second defendant are founded in negligence based on the second defendant failing to advise J properly or at all and are for damages. 

12.      While A's right to légitime is accepted, the plaintiffs' claims are disputed.  In relation to the légitime claim, H contends that sums paid from the estate to the benefit of A as avancement de succession will have exceeded any such entitlement.  The second defendant disputes any allegations of negligence."

5.        The procedural history of the matter up to the Amicus judgment is set out at paragraphs 13 to 24.  For the purposes of this judgment the relevant paragraph is paragraph 19 which states as follows:-

"19.    At the directions hearing on 11th June, 2014, directions were given covering the following issues:-

(i)        the plaintiffs were required to set out what losses that they incurred;

(ii)       the plaintiffs were required to set out particulars as to why it was said that each had suffered severe emotional distress as a result of the defendants' conduct, separated between each of the plaintiffs;

(iii)      finally the plaintiffs were required to particularise whether or not they were alleging fraudulent conduct or dishonesty against each of the defendants and if so the grounds relied upon.  It is also right to record that the first and second defendants reserved their rights to seek to strike out part of the plaintiffs' claims if fraudulent or dishonest conduct was alleged."

6.        While the detailed reasons I gave to the parties in respect of the appointment and the role of the Amicus were released to the parties on 23^rd September, 2015, on 27^th August, 2015, a hearing took place before me where I explained the role of the Amicus in summary. 

7.        Following the 27^th August hearing, the defendants, on 7^th September, 2015, issued summonses against all the plaintiffs including the present applications against the second and third plaintiffs.  The initial return date for the summonses was 5^th October, 2015. 

8.        On 1^st October, 2015, the parties appeared before me because I had received an indication from the first plaintiff that she might not be able to proceed with a strike out summons against her, then listed for 5^th October, 2015, on health grounds.  Having heard from the parties, I ordered that different parts of the defendants' summonses as well as the plaintiffs' application for a split trial should be heard on different dates.  In relation to the applications against the first plaintiff I ordered that these should be heard on 19^th October, 2015.  In relation to the applications against the second and third plaintiffs, I ordered that these should be heard on a date in December 2015.  Ultimately, a hearing was fixed for 17^th December, 2015.  In respect of the second and third plaintiffs I also ordered at paragraph 4 of the Act of 1^st October, 2015, as follows:-

"4.       by 30^th October, 2015 the Second and Third Plaintiffs shall file with the Court and serve on the other parties:-

a.        a schedule of losses each say they personally have suffered as a result of the actions of each of the Defendants including identifying which loss is claimed for each of the Defendants; and

b.        a statement of the severe emotional distress the Second and Third Plaintiffs claim to have suffered, identifying to what extent it is alleged that each of the Defendants are responsible for any such severe emotional distress and the reasons why".

9.        I made it clear that this order was a final order because it followed on from the directions I had given on 11^th June, 2014, summarised at paragraph 5 above.  What I meant by a final order is that if it was not complied with without justification, the defendants would be entitled to apply either to strike out that part of the second and third plaintiffs' claim for non-compliance or to seek an unless order requiring compliance, failing in which the relevant parts of the second and third plaintiffs' claim would be struck out. 

10.      For the sake of completeness in relation to legal aid I should add that Advocate Sharp was appointed to act for the third plaintiff on 1^st October, 2015, and Le Gallais & Luce were appointed to act for the second plaintiff on 1^st December, 2015.  

11.      On 15^th October, 2015, I was advised by Advocate Sharp that he was also then acting for the first plaintiff.  Accordingly, at Advocate Sharp's request, the summons listed for hearing as against the first plaintiff on 19^th October, 2015, was adjourned to 17^th December, 2015, to be heard at the same time as the application against the second and third plaintiffs.  This was to allow Advocate Sharp time to give legal advice.  The retainer of Advocate Sharp by the first plaintiff did not arise out of a legal aid certificate. 

12.      By 30^th October, 2015, I was informed that Advocate Sharp was no longer acting for the first or third plaintiffs.  On 2^nd November, I made it clear that each of the plaintiffs should appear on 17^th December, 2015, in person unless they had legal representation by that date. 

13.      On 17^th December, 2015, the matter was further adjourned.  This was because at the outset of the hearing, without any prior notification to the Court or the other parties, each of the plaintiffs produced a letter from their general practitioner indicating they were not capable of conducting litigation on their own behalf.  On the basis of the letters received from the plaintiffs' general practitioner the matter was therefore adjourned to 25^th February, 2016, to enable the plaintiffs to obtain an expert psychiatric opinion, which was to be provided to the Court and to the other parties. 

14.      On 25^th February, 2016, the defendants' applications were further adjourned because an expert psychiatric opinion had been received which suggested that the first plaintiff might not be able to present a case herself.  I therefore felt it was necessary to explore with the Acting Bâtonnier whether or not a lawyer could be appointed on legal aid in view of these circumstances.  In respect of the second and third plaintiffs the opinion expressed concerns that the stresses caused by the second and third plaintiffs conducting litigation could lead to a deterioration in their mental health.  I therefore concluded it was appropriate for the Acting Bâtonnier to be asked whether she could grant legal aid to all the plaintiffs for them to be provided with a further opinion. 

15.      In light of my decision that I should explore with the Acting Bâtonnier whether or not legal aid should be awarded to each of the plaintiffs for a further opinion, the defendants' summonses (and the plaintiffs' application for a split trial) were adjourned to 31^st March, 2016.  Just before this hearing, I was advised by legal aid that the first plaintiff had been granted legal aid in principle, but subject to a lawyer being identified.  This led to the summonses being further adjourned to 12^th May, 2016.  I therefore indicated to the second and third plaintiffs during the hearing that they should apply for legal aid as soon as possible if they wanted a further opinion. 

16.      I further made it clear to the parties on 31^st March, 2016, that the summonses would proceed on 12^th May, 2016, either with the plaintiffs being represented by an advocate on legal aid and/or Advocate Steenson as Amicus, absent exceptional circumstances.  This was because legal aid had been granted to provide an opinion on the merits of the claim including all interlocutory applications.  It was not therefore clear as at 31^st March, 2015, whether or not legal aid would continue following the opinion being provided.  In view of the opinion of the expert psychiatrist, and in the absence of any representative acting on legal aid, I ruled that the Amicus should appear to assist the plaintiffs in line with the approach set out in the Amicus judgment. 

17.      I further made it clear that I expected the plaintiffs to cooperate fully with the advocate appointed on legal aid and the Amicus if the Amicus was to appear.  I explained that I expected the plaintiffs to cooperate because the criticisms advanced by the defendants of the plaintiffs' case had force.  The adjournment granted on 31^st March, 2016, was accordingly an opportunity for the plaintiffs to respond to the criticisms advanced by the first and second defendants.  I encouraged all the plaintiffs to focus on the criticisms and to look to deal with them. 

18.      I also made it clear that enough delay had occurred.  I explained that the court had bent over backwards to try to help the plaintiffs by appointing an Amicus, which assistance had not been accepted for the reasons set out in the Amicus judgment.  The court had further adjourned matters in October 2015 to enable legal aid to be sought and legal advice obtained, had adjourned matters in December 2015 to enable an opinion to be obtained from an expert psychiatrist and had further adjourned matters in March 2016 to enable further legal advice to be obtained.  I therefore made it clear that the summonses absent extraordinary circumstances had to proceed. 

19.      To ensure this could happen I indicated that I would write to the Acting Bâtonnier's office asking for the lawyer's opinion to be produced by 22^nd April, 2016, so that the parties could prepare for the hearing on 12^th May, 2016, including consulting with Advocate Steenson as Amicus if the plaintiffs did not have legal aid at that time.  An opinion (in respect of which privilege is not waived) was provided to the plaintiffs by 22^nd April, 2016, by Advocate Milner of Callington Chambers, and has been described by the first plaintiff in an email sent to me dated 27^th April, 2016, at 15.11 as lengthy. 

20.      Following the receipt of Advocate Milner's opinion by the plaintiffs, the first plaintiff was granted legal aid for a second opinion from Advocate Baker of Baker and Partners.  The second and third plaintiffs by contrast were not entitled to a second opinion because they had already been allocated legal aid previously as referred to at paragraph 10 above.  They had therefore received two allocations of legal aid and were not entitled to any further allocations.  The first plaintiff by contrast had only received one legal aid certificate in March 2016 and so was entitled to a second opinion. 

21.      The further award of legal aid to the first plaintiff led to an application by the first plaintiff on 11^th May, 2016, to adjourn the summonses against her, to enable her to obtain a second opinion.  While the first plaintiff issued a summons seeking an adjournment, oral submissions were made by Advocate Baker on her behalf.  I decided to grant the adjournment in favour of the first plaintiff because I reached the view that to require her to argue her summons, when she had not had the benefit of a second opinion, might be said to breach her right to a fair trial.  However, I required her to pay the costs of the adjournment on an indemnity basis.  In respect of this application Advocate Baker was quite clear that he was acting for the first plaintiff only.  No application was made for an adjournment on 11^th May, 2016, by the second and third plaintiffs who did not appear.  I therefore made it clear to those who were present that the hearing the following day as against the second and third plaintiffs would proceed.  The draft summons for an adjournment, as submitted by the first plaintiff in her name alone, was in the following terms:-

"The case should be adjourned for the following reasons... The Plaintiffs unexpectedly find themselves without legal representation and it has been found by the Court that the Plaintiffs either do not have the capacity to represent themselves and/or it would be damaging for the Plaintiffs to represent themselves and accordingly the Plaintiffs are most urgently seeking legal representation as they remain in need of such representation."

The adjournment application

22.      Notwithstanding the fact that no adjournment application was applied for on 11th May, 2016 by the second or third plaintiffs, the second plaintiff, at the commencement of the hearing of the defendants' summonses against the second and third plaintiffs on 12th May, 2016 applied for an adjournment on his own behalf and on behalf of the third plaintiff.  The third plaintiff had not appeared, but as the position of the second and third plaintiff as far as I was concerned was identical, I allowed the application to be made on behalf of both the second and third plaintiffs. I should add that by reference to the hearing on 31st March I was expecting the third plaintiff to appear on 12th May as the date had been fixed to avoid any clash with his university examinations.

23.      The adjournment was sought because the second and third plaintiffs wanted to obtain legal representation.  They felt that they needed a lawyer.  They wished to challenge the decision of the Acting Bâtonnier not to grant them further legal aid to review the second opinion they had received on 22^nd April, 2016.  The second and third plaintiffs led by the first plaintiff were also exploring the possibility of obtaining legal advice from a barristers' chambers in England who were willing to advise.  I was informed the funding of this was going to be provided by a friend or friends of the first plaintiff.  The second plaintiff further felt aggrieved in terms of the certificate granted to him the previous December 2015 that he had never met with the lawyer or received any advice.  

24.      The second plaintiff also argued that the adjournment application the previous day had also been made on their behalf.  While this was not how the case was put to me by Advocate Baker, I accept that the first plaintiff's summons set out above might have been intended to cover all the plaintiffs.  The second and third plaintiffs had also by emails sent on the morning of 11^th May supported the first plaintiff's application for an adjournment. 

25.      Finally, the second plaintiff indicated that an adjournment of the applications against him and his brother to the same time as their mother's summons would not cause significant prejudice. 

26.      In response both defendants opposed to the adjournment application.  They complained that their summonses had been awaiting determination since September the previous year.  There was also no affidavit in support of the application for an adjournment.  While the plaintiffs were litigants in person, they were well aware of the need for an affidavit in support of an application for an adjournment, because this had been explained to them in an email from me dated 18^th November, 2015, where I had set out the following:-

"In this case, if you are seeking an adjournment on the grounds set out in your email, any such summons must be supported by a full affidavit setting out what applications have been made for legal aid since I appointed an amicus, when those applications were made and the consequences of such outcome of such applications. In particular, from emails from Advocate Sharp it appears that legal aid was awarded and was subsequently withdrawn. Any affidavit should therefore deal with the circumstances of legal aid being granted and withdrawn. However given that the circumstances in which any legal aid may have been withdrawn might go to the merits, if legal aid was withdrawn I simply need to know when it was withdrawn and a concise summary of the reasons why. If those reasons were about the merits of the plaintiffs' claims I would wish to be informed of that fact but not of any analysis relating to the merits.

If there is any appeal against either a refusal to grant legal aid or the withdrawal of legal aid the affidavit should also deal with this and when any such determination is due to take place.  

If the affidavit does not deal with all of the matters I have referred to in this email then any failure to do so will be taken into account in determining any application for an adjournment."

27.      The defendants further suffered prejudice because each time they came to a hearing wasted costs were incurred in re-familiarising themselves with the matter and the parties' submissions to the degree required to argue their case. 

28.      The second and third plaintiffs had also made serious allegations against the defendants which they should be prepared to defend. 

29.      The second and third plaintiffs had further had the benefit of two legal aid certificates and with the offer of help from an Amicus which they had chosen to reject, despite being warned from the observations of the Amicus and my observations at the hearing at the end on 31^st March, 2016, that they needed to focus on what their case was. 

30.      Having heard from the parties I refused the adjournment application.  My reasons for doing so were essentially those advanced on behalf of the defendants.  The time had come for the summonses to be determined.  The second and third plaintiffs had an opportunity to take legal advice in October and December 2015, but did not appear to have done so.  They had also not argued at that time that no legal advice had been given.  They had had the benefit of legal advice since the previous hearing as well as being on notice that the hearing on 12^th May, 2016, was going to proceed absent exceptional circumstances.  The reason legal aid was obtained by them for a second opinion was because they were strongly encouraged to do so by me on 31^st March, 2015.  They had not acted themselves to obtain a second opinion.  They had also not taken up the help of the Amicus.  

31.      Their position was also different from that of the first plaintiff because she had previously only received one allocation of legal aid and was therefore entitled to a second opinion in respect of the advice provided by Advocate Milner.  The second and third plaintiffs were not entitled to further assistance under the legal aid scheme and therefore the reasons which led to an adjournment being granted in respect of the first plaintiff did not apply to the second and third plaintiffs.  In addition, each time I granted an adjournment the defendants were caused prejudice because wasted costs were being incurred which the defendants had to meet and due to the unfairness of outstanding summonses not being determined.  It also appears that the second and third plaintiffs are not currently in a position to meet any wasted costs orders, which orders therefore have no practical effect or deterrence.  I concluded these matters taken together outweighed any prejudice the second and third plaintiffs might suffer because they wanted to attempt to find legal representation or appeal against the decision not to allocate another lawyer on legal aid.  In my view these attempts had been left far too late in the day to justify a further adjournment at this stage, in light of the previous offers of assistance and offers of advice or advice already given.  

The defendants' submissions

32.      Advocate Franckel in respect of the first defendant's summons which Advocate Wilson supported for the second defendant contended as follows:-

(i)        His application was made on the basis of Rule 6/13(1)(a) of the Royal Court Rules 2004, as amended, that the pleading in relation to the second and third plaintiffs did not disclose any reasonable cause of action.  He fairly accepted that such a pleading could only be struck out if it was plain and obvious that it could not succeed, which was a high hurdle to overcome.  If a claim disclosed some cause of action or contained some question fit to be tried, the fact that it was weak was no ground for asking for it to be struck out (see Lapidus v Le Blancq [2013] 2 JLR 308. 

(ii)       As far as the claim by the second and third plaintiffs is concerned they sought to blame the first defendant for the fact that the 2008 wills did not leave them with an unspecified share of the estate of their late grandmother.  They further claimed severe emotional distress as well as economic loss and accordingly sought damages.  There was also a claim based on a breach of their human rights which had since been abandoned. 

(iii)      The event upon which the plaintiffs' claims were based was the execution of two wills on 2^nd April, 2008, (the "2008 Wills") by the first plaintiff's mother (the "grandmother").  The entirety of both wills left the grandmother's immoveable and movable estate to the first defendant, unless he predeceased the grandmother, in which case both estates were to be divided equally between the four grandchildren, including the second and third plaintiffs.  In practical terms, while it was argued that the second and third plaintiffs were better off under the 2008 Wills, this fall-back position did not in fact make any difference for the second and third plaintiffs because the first defendant outlived the grandmother and therefore took under both wills. 

(iv)      If the 2008 Wills are set aside on the basis that the grandmother lacked capacity (which is an issue for trial) the effect of this would mean that in the case of immoveable property an earlier will executed in 1975 (the "1975 Will") would revive and in respect of moveable property there would be an intestacy.  In respect of the 1975 Will the legatees were the first plaintiff and the first defendant.  In the case of an intestacy of the grandmother's immoveable estate again the first plaintiff and the first defendant would inherit under Jersey law.  While the first plaintiff is alive the second and third plaintiffs cannot therefore inherit. 

(v)       In relation to the primary claim in the order of justice for half of the moveable and immoveable estate of the grandmother inherited by the first defendant, this claim is based on an alleged promise made by the first defendant; such a promise however was always in favour of the first plaintiff only as the person who was previously intended to inherit under 1975 Will, not the second and third plaintiffs. 

(vi)      In respect of stress, Advocate Franckel while accepting in oral argument that in principle it was possible to claim for emotional distress arising as a result of the consequence of the behaviour of the first defendant (as distinct from distress and anxiety caused by the litigation process itself) such a claim still requires a party to establish that a breach of contract or breach of duty has arisen.  The first defendant contended that no such breach of duty could be established, there was no contract and, even if there was, no breach of any such contract could be established. 

(vii)     The assertion advanced in the order of justice was that it was the first plaintiff who had a reasonable expectation of a share in the estate, not the second and third plaintiffs, save to the extent that they might indirectly inherit one day from the first plaintiff.  The court at trial would not however rewrite wills to produce an outcome the court might regard as fair.  The setting aside of a will would simply lead to either an earlier will being revived (based on the doctrine of dependant relative revocation) or an intestacy.  Any loss under this head of claim, which the defendants accept is a matter for trial (other than in respect of allegations of fraud), is therefore that of the first plaintiff, not the second and third plaintiffs. 

(viii)    Even if a duty of some kind was owed by the first defendant, there is no evidence of any breach of such duty or any loss.  The plaintiffs have to establish all three elements in order to demonstrate a reasonable cause of action.  Likewise no loss can be established in respect of any breach of contract or promise. 

33.      Advocate Wilson for the second defendant, in addition to supporting the arguments of Advocate Franckel, pointed out that the claim against the second defendant was in summary a failure to ascertain the testamentary capacity of the grandmother. 

34.      Paragraph 31 of the order of justice states as follows in that regard:-

"That the second defendant failed to take proper steps to ascertain testamentary capacity of the deceased, both at the time instructions were given, or at the time of the wills were executed even though the circumstances should have been made the second defendant particularly diligent in this regard, in particular the second defendant failed to obtain medical opinion at the material times."

35.      The allegation of negligence against the second defendant at present is therefore that they failed ascertain that the grandmother did not have capacity to execute the 2008 Wills.  The effect of such an argument if established merely leads to the setting aside of those Wills.  Again that has the consequence that the 1975 Will in case of immovable property is revived or alternatively there is an intestacy.  In either case it is only the first defendant and the first plaintiff who would benefit. 

36.      Any claim therefore that the second defendant failed to give effect to the intentions of the grandmother would be inconsistent with the claim as presently pleaded.  At present the plaintiffs have not put forward any details about how such a claim might be pleaded, why any duty was owed, why that duty had been breached, if owed, and what loss arose from any such breach of duty. 

The second and third plaintiffs' submissions

37.      I start by recording that these submissions were made by the second plaintiff for himself and for the third plaintiff because their positions were identical.  During the hearing I also ruled expressly that it was not appropriate for the first plaintiff to speak on behalf of the second and third plaintiffs; they were separate parties with their own claim.  The position of the first plaintiff (who was entitled to be present because summonses were being determined) was therefore limited to correcting any factual matters where the second and third plaintiffs and therefore the court might fall into error.  I required the second plaintiff to make submissions because I wanted to understand from him what he said that each of the defendants had failed to do.  This was particularly important in the context of a strike out application where it was said that the second and third plaintiffs did not have a claim.  The best way for me to assess the rival arguments was to hear directly from the second plaintiff separate from the first plaintiff.  

38.      I also wish it to be recognised in this judgment that it was not easy for the second plaintiff to present his arguments.  However, the second plaintiff did make his position clear and did so in a clear and courteous manner.  I had no difficulty in understanding or following the second and third plaintiffs' arguments. 

39.      In making the submissions the second plaintiff firstly explained that he felt let down by the legal system and that he and the third plaintiff had not been given enough time to prepare their submissions. 

40.      He then argued that his grandmother would have set up a tutelle to avoid claims by his father against any property inherited by his mother.  I therefore explored with the second plaintiff what he meant by this, and why this gave rise to a claim against the first defendant. 

41.      The second plaintiff explained that promises were made both by his grandmother and the first defendant that they would support the second and third plaintiffs through all their school and university education if their father did not meet school fees or the cost of any tertiary education.  In respect of the second plaintiff's education he explained he was just about to graduate and had left school in 2012.  The third plaintiff left school in 2013 and was also at university.

42.      At present the second and third plaintiffs were struggling to meet the cost of university which was a submission the first plaintiff had also made on previous occasions.  The second plaintiff fairly accepted however that their school fees had been paid by his father.  In respect of their university education the second plaintiff explained that he and the third plaintiff received some financial assistance by way of tuition fees and the costs of living from the States of Jersey and an allowance from their father.  Their father has been divorced from the first plaintiff for a number of years. 

43.      The second plaintiff also explained that the reason why the second and third plaintiffs were in financial difficulties is that, in relation to the money they received for their university education, some of these funds were being used in part to support their mother so that she could keep the family home. 

44.      The second plaintiff also stated that there were certain personal effects that his grandmother promised he could have which the first defendant had never given to him.  This was in addition to the claim in paragraph 21 of the order of justice where the plaintiffs sought to recover their own belongings from their grandmother's former home. 

45.      The second plaintiff fairly accepted that at times the first defendant had provided him with some help in terms of some financial support to help with the costs of attending school in England. 

46.      Finally, the second plaintiff referred me to a passage from Williams on Wills relating to what was required for a testator to have sound testamentary capacity at common law by reference to the English case of Banks v Goodfellow (1869-70) LR5 QB 549. 

47.      I explained to the second plaintiff in respect of this passage that the defendants' application was being brought on the assumption that the matters set out in the order of justice were true.  I was therefore proceeding on the assumption in respect of the claims that there was an arguable case that the grandmother did not have testamentary capacity. 

48.      The second plaintiff also indicated they were parties to this litigation because of concerns about the first plaintiff dying before litigation was concluded.  The second and third plaintiffs were concerned that in such circumstances they would not be able to pursue the claim. 

49.      Finally the second plaintiff argued that the first defendant was estopped from denying promises he had made.  

50.      In response to the submissions of the second plaintiff Advocate Franckel contended as follows:-

(i)        At present the pleading did not contain anything about a claim for personal effects that the grandmother said she would leave to the second and third plaintiffs.  This was a claim that had never been raised until the hearing itself.  It should not form part of these proceedings. 

(ii)       The claim for the second and third plaintiffs' own belongings to be returned contained in paragraph 21 of the order of justice was also wholly un-particularised. 

(iii)      It was not for the court rewrite the pleading for the plaintiffs to formulate a case for them. 

(iv)      The claim that the grandmother and the first defendant would support the second and third plaintiffs through their education had also never been articulated or particularised. 

(v)       Even if such a claim could be articulated or particularised, the claim against the grandmother was a claim against the estate and not the first defendant. 

(vi)      Most significantly there was no evidence of any breach of such a promise or any loss arising from any such breach.  This was because any promise was to provide for education in the event that the second and third plaintiffs' father pursuant to the divorce arrangements did not do so.  However, it was clear from the second plaintiff's own submissions that the assistance the second and third plaintiffs' father was obliged to provide had been provided. 

(vii)     Furthermore this was all that the second and third plaintiffs' father was required to provide as was clear from the Royal Court judgment reported at In the matter of II [2010] JRC 209, set out in paragraphs 62 to 65 as follows:-

"62.    There are insufficient assets and income to meet the needs of this family.  The bulk of the respondent's income, which is the only income coming in to the family, is devoted to maintaining the two children at one of the most expensive schools in the country.  He is left with barely sufficient income to support himself in London.  The petitioner has no income; a fact which the Registrar observed had led to the children suffering significant deprivation when living at home with the petitioner.  She has outgoings of £96,660 per annum to meet the payments of the two mortgages and the Acorn loans and is due to repay one Acorn loan this December in the sum of £104,859.  The position is unsustainable.  It is clear what needs to be done:-

(i)        The children should be removed from their present school to continue their education in the Island, thus freeing up the bulk of the respondent's earnings. 

(ii)       The two properties should be sold and all the debts of the parties discharged. 

(iii)      The petitioner should obtain gainful employment. 

63.      The welfare of the children is our first consideration and there can be no doubt that it is in their best interests to remain at their current school where they are well settled.  That is their wish.  However they cannot be shielded from the financial realities of life and if their parents cannot afford the fees then they will have no option other than to complete their education in Jersey.  In our judgement their parents cannot afford the fees but they will not countenance the children being removed from their school. 

64.      The petitioner will not sell the properties or obtain employment.  We are mindful that the Jersey property constitutes the home of the children when not at school and we are reluctant to order its sale, although the debt burden of the petitioner may take the matter out of our hands. 

65.      The petitioner was asked how she intended to meet her financial obligations should the Court find that the assets of the respondent were as disclosed by him.  She responded by saying that her brother would step in to assist.  She did not seek to call her brother to give evidence as to the extent of his potential support but made it clear that his support is short term only.  He will apparently assist refurbishing the Winchester property so that it can be let to meet the interest on the mortgage and thus be retained for the benefit of the children, who are his main concern.  We would have thought that the retention of the Jersey property was the greater priority. 

66.      The parties' decision to devote the bulk of the respondent's income to the private education of the children leaves little or no room for manoeuvre.  There can be no question, currently, of the respondent making periodic payments to the petitioner or paying her maintenance for the children...."

(viii)    The judgment of the Royal Court went on to order the first plaintiff to make a lump sum payment to her ex-husband.  This part of the judgment was overturned on appeal.  I should record in relation to these judgments that the decisions made by the Royal Court remain disputed by the first plaintiff. 

(ix)      Advocate Franckel further argued that estoppel operated to defend a claim but was not a cause of action.  He fairly accepted however that a promise made could be enforceable if it was intended to have legal effect. 

51.      Advocate Wilson supported Advocate Franckel's reply and in addition in the alternative reminded me that, if I was not in favour of striking out the claims pursuant to Rule 6/13(1)(a) of the Royal Court Rules 2004, as amended, I could also strike out the second and third plaintiffs' claims due to their failure to provide the particulars I had ordered on 31st October, 2015, on the basis this was a final order. 

Decision

52.      In respect of the applicable test on a strike out, I agree it is as set out by Advocate Franckel.  In particular, it is only in plain and obvious cases that a claim or part of a claim should be struck out.  I must also proceed on the assumption, where the ground relied on is that there is no reasonable cause of action, that the matters set out in the order of justice are true. 

53.      In respect of the second and third plaintiffs' concern that the claims brought by the first plaintiff would not pass to her estate, I indicated that the position was dealt with by Article 1(1) of the Customary Law Amendment (Jersey) Law 1948.  The claim of the first plaintiff would therefore pass to her estate and so this was not a basis for the second and third plaintiffs to be parties to the proceedings. 

54.      In respect of the claims of the second and third plaintiffs against the first defendant, the claim as presently pleaded, subject to one point, is for a half share of moveable and immoveable property left to the first defendant by the grandmother.  This loss however is the loss of the first plaintiff, not the second and third plaintiffs.  The essence of the action is for a breach of contract or breach of a promise by the first defendant that the first plaintiff should receive half the estate.  This is not therefore a loss suffered by the second and third plaintiffs or a claim they can bring in law, while their mother is pursuing a claim.  If the 2008 Wills are set aside on the basis of a lack of capacity again I agree that it is the first plaintiff who will inherit, not the second or third plaintiffs.  They will only ever inherit through the first plaintiff's estate which is not a reason for them to be parties at this stage. 

55.      In respect of the claim by the second and third plaintiffs that their grandmother and their uncle, the first defendant, promised to pay any school fees that were not paid, assuming the promises were made and that such promises were intended to have legal effect, such a promise is not sufficient alone to establish a claim that the second and third plaintiffs can bring.  The second and third plaintiffs must plead a breach of such a promise and a loss caused by such a breach.  Yet in the second plaintiff's explanations he could not identify any breach either by his grandmother or by the first defendant of any such promise.  He also could not identify any loss.  The school fees were paid by the second and third plaintiffs' father in accordance with the terms of the Royal Court judgment set out above.  The second and third plaintiffs' father is not required to pay any other sum pursuant this judgment.  There is therefore no arguable claim identified based on a refusal by the grandmother or the first defendant to adhere to any promise they may have previously made and no evidence or indication of any loss that the second or third plaintiffs have suffered.  This argument cannot therefore form a basis of a claim.  The fact that the plaintiffs might feel that different orders should have been made in the divorce proceedings or that the orders made by the Royal Court were unfair is also not a basis to allow the present claims by the second and third plaintiffs to continue. 

56.      In the case of the grandmother, I should add that even if such a claim could have been formulated, it would be a claim against the grandmother's estate.  Had such a claim been capable of being properly formulated it would have been necessary to consider whether such a claim should be part of the present proceedings or whether separate proceedings should be commenced.  However, it is not necessary for me to reach a decision on this point, which is not straightforward, because no such claim is capable of being formulated for the reasons I have given. 

57.      I cannot let this part of my judgment pass without observing that the reason that the second and third plaintiffs find themselves in financial difficulties is not because of any breach of any promise by the grandmother or the first defendant, as the second plaintiff explained matters to me.  Rather it is because the second and third plaintiffs are providing part of the monies given to them for their education to support their mother.  While this is laudable, the financial difficulties the second and third plaintiffs find themselves in arise out of their decision to support their mother.  This situation appears to exist because notwithstanding the observations of the Royal Court that the financial position of was "unsustainable" (see paragraph 62) with the Royal Court then suggesting that the two properties owned by the first plaintiff should be sold and the first plaintiff obtain employment, this has not happened.  I should add that the first plaintiff has at times faced significant challenges due to health reasons and so taking the steps envisaged by the Royal Court may not at times have been possible.  Equally, she has also pursued this and other litigation with vigour which time might have been spent on taking up the Royal Court's suggestions. 

58.      In relation to the reliance on the doctrine of estoppel I agree that promissory estoppel operates as a defence and does not give rise to a claim (see Flynn v Reid [2012] (1) JLR 370 at paragraphs 23 and 24).  Proprietary estoppel also does not form part of the law of Jersey so as to create an equitable interest in land - see Flynn v Reid (supra) at paragraph 50.  Yet a claim to half the grandmother's former home is the main thrust of the plaintiffs' claims.  However, as Advocate Steenson as Amicus pointed out, a promise made can be capable of giving rise to legal relations between family members and therefore be enforced, if that is what the parties intended.  However as I have already explained above, assuming such a promise was made and it was intended to have legal effect, or whether some form of estoppel might apply in theory, on either analysis there is no indication of any breach of any promise or loss being suffered due to any such breach. 

59.      In respect of the suggestion that the grandmother could have established a tutelle, a tutelle only comes into being where a minor receives or is to receive property.  The grandmother could not have established a tutelle; rather the creation of a tutelle would be a consequence of a gift or legacy.  This is not therefore a claim that can be sustained in law.  For the sake of completeness I add that it would have been possible for the grandmother (assuming she had capacity to do so) to have created a trust to provide for the second and third plaintiffs but nothing I have seen suggests this was ever envisaged as a possibility.  I deal with any intended legacies of the grandmother later in this judgment. 

60.      In respect of the claim for effects that the grandmother promised, at present this claim has not been articulated or particularised.  I am not even aware that any request has been made to the first defendant for any such effects or what his response might be.  In exercise of the discretion vested in me, given this is a dispute between family members, I would firstly want to see such a request formulated and the first defendant's response to it before I could be persuaded to allow the order of justice to be amended to plead such a claim.  It may be that the first defendant would agree to provide such effects.  My view is therefore that what should take place is an attempt to set out this claim in writing, ideally directly between the second and third plaintiffs and the first defendant, rather than through any lawyers and then to see if agreement can be reached either directly or through mediation.  This would not involve any other party to the present proceedings.  I wish to add that at present the Citizen's Advice Bureau offer mediation which would cover this kind of dispute, which I strongly encourage the parties to consider separately from the substantive proceedings. 

61.      In respect of the claim of the second and third plaintiffs in paragraph 21 of the order of justice to recover their existing belongings, this is an arguable claim which cannot therefore be struck out.  To this extent only the second and third plaintiffs must remain as parties to this litigation.  However, again there are no particulars provided as to what belongings it is said the first defendant has not returned.  Again therefore I am going to require the second and third plaintiffs to communicate directly in writing to the first defendant what belongings they say have not been returned within 14 days of this judgment being handed down.  The first defendant must then respond within 14 days.  I further require these parties (and not the other parties) to consider whether this issue should also be referred to mediation.  Pending on the responses received I will then adjudicate on what should happen to this part of the claim. 

62.      Finally, I should deal with the statements provided by the second and third plaintiffs on 30^th October, 2015.  These statements provide as follows:-

"Schedule of Loss and Damages of the Second Plaintiff

The Second Plaintiff has suffered loss and damage due to the actions and/or neglect of the Defendants in the following categories; negligence including but not limited to negligent misstatement, misrepresentation, fraud, deceit, unjust enrichment, breach of fiduciary duty.

The losses include economic loss including a share loss of rental on the Winchester Property and/or the St Brelade Property, loss of a share of the capital value of the Winchester Property and loss of profit on such share had the funds been prudently invested where such sum exceeds the loss of rental, interests on such economic losses and interest on debts incurred by the Second Plaintiff due to being kept out of monies and having to borrow, loss of earnings as the Second Plaintiff had to repeat a year at university and therefore missed a year of paid employment, damages for physical inconvenience and loss of amenity, damages for personal injury due to emotional distress and psychological damage, damages for breach of fiduciary duty, punitive and/or exemplary damages, loss of personal possessions kept by the Second Plaintiff at the Winchester Property, loss of a share in the Deceased's moveable property, interest on such sums at such rate that the Court seems fit and costs.

The severe emotional distress of the Second Plaintiff stems from the deceit and breach of trust involved, the loss of amenity and physical and  psychological distress brought about by the actions and/or neglect of the First and/or Second Defendants including but not limited to the financial constraints and pressures brought about by the said actions or neglect.

Schedule of Loss and Damages of the Third Plaintiff

The Third Plaintiff has suffered loss and damage due to the actions and/or neglect of the Defendants in the following categories; negligence including but not limited to negligent misstatement, misrepresentation, fraud, deceit, unjust enrichment, breach of fiduciary duty.

The losses include economic loss including a share loss of rental on the Winchester Property, (the Deceased's property) and/or the St Brelade Jersey, loss of a share of the capital value of the Winchester property and loss of profit on such share had the funds been prudently invested where such sum exceeds the loss of rental, interests on such economic losses and interest on debts incurred by the Third Plaintiff due to being kept out of monies and having to borrow, damages for physical inconvenience and loss of amenity, damages for personal injury due to emotional distress and psychological damage, damages for breach of fiduciary duty, punitive and/or exemplary damages, loss of personal possessions kept by the Third Plaintiff at the Winchester Property, loss of a share in the Deceased's movable property, interest on such sums at such rate that the court deems fit, and costs.

The severe emotional distress of the Third Plaintiff stems from the deceit and breach of trust involved, the loss of amenity and physical and psychological distress brought about by the actions or neglect of the First and/or Second Defendants including but not limited to the financial constraints and pressures brought about by the said actions or neglect."

63.      In the course of argument I was informed in response to a question I raised that these statements were drafted by the first plaintiff and were then approved by the second and third plaintiffs with some modifications.  I have also noted that, other than the reference in the second paragraph to the second plaintiff having to borrow money so he can repeat a year at university, the statements are otherwise identical. 

64.      In respect of the first paragraph of both statements, these statements are a summary of the claims brought by the first plaintiff.  Insofar as these paragraphs are intended to be separate claims brought by the second and third plaintiffs they are wholly unparticularised.  Again the only promise peculiar to the second and third plaintiffs is to pay school fees and the cost of education if not otherwise met where there is no suggestion of a breach or a loss for the reasons I have already given.  In addition, to the extent that the second and third plaintiffs simply repeat and support the claims brought by the first plaintiff, this is not a justification for the second and third plaintiffs to remain as parties. 

65.      In respect of the losses identified in the second paragraph of both statements, the losses identified in relation to immoveable property (which are matters for argument between the first plaintiff and the first defendant) are all losses only claimable by the first plaintiff.  They are not separate and identifiable losses that the second and third plaintiffs can demonstrate. 

66.      Insofar as the second plaintiff has incurred interest on debts, the financial difficulties he faces are due to his laudable support of the first plaintiff and not due to any breach by the first defendant. 

67.      The claim for loss of earnings due to the second plaintiff having to repeat a year at university is a loss that is too remote from any breach of an alleged promise.  In the event there is no evidence of any breach of duty or promise for the reasons I have already given. 

68.      In respect of the claim for punitive/exemplary damages, exemplary damages only arise in respect of an outrageous disregard of a plaintiff's rights (see Haden-Taylor v Canopius [2015] 1 JLR 224 at paragraphs 235 to 239).  In this case the second and third plaintiffs cannot show any breach or damage.  Questions of punitive and exemplary damages do not therefore arise.  Indeed, the second plaintiff accepted that some support had been provided by the first defendant. 

69.      In respect of the other heads of claim for loss of personal possessions and severe emotional distress, I have already dealt with these earlier in this decision. 

70.      As far as the claims against the second defendant are concerned, the existing claim is an allegation that the second defendant failed to ascertain whether the grandmother had testamentary capacity when making the 2008 Wills.  Again no loss is caused to the second and third plaintiffs because, if the grandmother did not have testamentary capacity, then it is only the first defendant and the first plaintiff who can inherit, whether under the 1975 Will in the case of immoveable property or on intestacy in the case of moveable property.  The second and third plaintiffs cannot inherit. 

71.      To the extent that an alternative claim is formulated in negligence for failing to give effect to the intentions of the grandmother to benefit the second and third plaintiffs, then save in respect of a promise to pay school fees, the second and third plaintiffs cannot otherwise articulate what those intentions were.  It is important to understand that allegations about negligence in respect of the execution of wills are limited to a duty to ensure execution of the testator's instructions and do not extend to what the testator might have wanted.  This can be seen from an analysis of the leading case of White v Jones [1995] 2 AC 207 and the passages at paragraphs 10-112 and 10-113 of Clerk and Lindsell on Torts (21st Edition) as follows:-

"Duties of Third Parties: Will Cases

10-112

The majority of the third party cases concern negligence in and about the execution of wills and gifts. Although the principle of liability was laid down in Ross v Caunters, the leading case is now White v Jones.  A dilatory solicitor, instructed by a testator to draw up a wilI in favour of the claimants, failed to do so, whereupon the client died and the claimants received nothing. The House of Lords, by a majority, held the claimants entitled to recover the would-be legacy from the solicitor. Lord Goff, while accepting the general principle that a solicitor owed no duty to those other than his client, pointed out that the solicitor had obviously failed to effectuate the testator's intentions, that even if the client himself had suffered no loss, justice seemed to demand a remedy, that it was not an insuperable objection that the loss was merely economic and that there was little danger of over-extended liability.

10-113

The principle in White v Jones has been refined in a number of decisions. There is no doubt that it covers simple and in addition failure to check a will for due execution when returned.  In Carr-Glyn v Frearsons it was extended to cover failure to warn a testatrix that where she left her interest in a house held on joint tenancy to a legatee, it would be necessary to sever the joint tenancy to make the gift effective. On the other hand, it is also clear that the duty is subject to a number of important qualifications. First, it is limited to a duty to ensure execution of the testator's instructions. It has thus been held not to extend to a failure to advise further about how to minimise adverse tax consequences or as to whether the instructions reflected what the testator actually might have wanted. Nor, it seems, will a solicitor be liable to a would-be beneficiary if he wrongly advises the testator that a bequest to him is impossible in law. It has also been said that in so far as a disappointed legatee has a right to rectify the testator's will, he must take reasonable steps to do so and if he does not his claim may fail for lack of mitigation but this, with respect, is highly doubtful. Secondly, in Worby v Rosser it was held to be owed only to the would-be legatee or beneficiary. Hence a solicitor drafting a will for a client who he allegedly should have known was in fact incompetent was held not liable to legatees under a previous, valid, will for their expenses of establishing their entitlement. Thirdly, no duty will be owed where the solicitor would have been liable to the estate, so as to avoid the problem of double liability. Fourthly, the White v Jones principle has been held not to extend to the misdrafting of an inter vivos gift or promise" (emphasis added). 

72.      Applying these passages the principle in White v Jones does not extend a lawyer's duty of care to an individual whom a testator might have intended to have benefited absent those intentions being communicated to the lawyer concerned.  At present therefore again any new claim in negligence cannot be pleaded because the grandmother's intentions have not been identified.  The second plaintiff, apart from his reference to the creation of a tutelle and the promise to meet education costs if not met by the second and third plaintiffs' father, could not otherwise articulate his grandmother's intentions which the second defendant failed to give effect to.  I have already dealt with the suggestion that the grandmother could have created a tutelle above.  

73.      To the extent it is suggested that that the second defendant should have given effect in the grandmother's will to a promise to meet the costs of the second and third plaintiffs' education if such costs were not otherwise met, again no loss can flow from a failure to give effect to such an intention by the second defendant as the costs of such education were met by the second and third plaintiffs' father.  In addition I have seen no evidence or heard any explanation that the second defendant was ever aware of such an intention (and disclosure in this case has occurred); there is nothing at present therefore to show that any breach of duty has occurred.  However, even if I assume in the second and third plaintiffs' favour that such an intention was known to the second defendant and so a claim could be advanced to argue a breach of duty, no loss has arisen for the reasons already given and therefore there is no claim. 

74.      In addition, the grandmother passed away in 2011.  Any claim at this stage assuming it could be pleaded to show a duty, a breach and a loss, based on a failure to give effect to the grandmother's intentions, is a new claim and is outside the applicable limitation period for claims in tort of three years.  Any claim is therefore arguably prescribed and accordingly must also be struck out (see Bagus v Kastening [2010] JLR 355 and Voisin Executors Limited v Kelleher [2016] JRC 51).  I also cannot permit the second and third plaintiffs to plead a new claim (even if the other difficulties I have addressed in this decision could be dealt with) which is clearly out of time. 

75.      In conclusion, for the reasons set out in this judgment I therefore strike out the claims of the second and third plaintiffs against the first and second defendants as disclosing no reasonable cause of action, save in respect of their claim against the first defendant for personal possessions.  Furthermore no other arguable claim has been articulated which would justify allowing the second and third plaintiffs time to apply to amend the order of justice to plead such a claim. 

76.      In respect of the claim for personal possessions I direct the second and third plaintiffs within 14 days to set out in writing what items or possessions of their own, or what personal effects the second and third plaintiffs consider that their grandmother intended to leave them, and what they claim they should have received but which they have not received.  I further direct the first defendant to set out his response in writing within 14 days of receipt of the particulars to be provided by the second and third plaintiffs.  I further encourage the second and third plaintiffs and the first defendant to explore resolution of this part of the claim through discussion or mediation.  Any such discussion or mediation should not involve any other party. 

Authorities

In the matter of II [2015] JRC 194.

Royal Court Rules 2004

Lapidus-v-Le Blancq [2013] (2) JLR 308.

Williams on Wills.

Banks v Goodfellow (1869-70) LR5 QB 549.

In the matter of II [2010] JRC 209.

Customary Law Amendment (Jersey) Law 1948.

Flynn v Reid [2012] (1) JLR 370.

Haden-Taylor v Canopius [2015] (1) JLR 224.

White v Jones [1995] 2 AC 207.

Clerk and Lindsell on Torts (21st Edition).

Bagus v Kastening [2010] JLR 355.

Voisin Executors Limited v Kelleher [2016] JRC 051.