Jersey Unreported Judgments

Trust - appeal against a decision of the Judicial Greffier

[2022]JRC210

Royal Court

(Samedi)

10 October 2022

Before     :

Sir William Bailhache, Commissioner, sitting alone

 

The Plaintiff appeared in person

Advocate D. Evans for the First and Second Defendants.

Advocate A. Kistler for the Third Defendant.

judgment

the COMMISSIONER:

Introduction

1.        I sat on the 7^th and 8^th September to hear an appeal against a decision of the Judicial Greffier Cook v Clapham and Ors [2022] JRC 091 refusing leave to the Plaintiff to amend his Order of Justice and giving summary judgment against him in favour of the Defendants.  At the end of the hearing, I reserved judgment, which I now deliver.

2.        The Plaintiff is the eldest grandson of Sir Francis Cook ("Sir Francis") who died testate in 1978 in Jersey, having taken up residence in the island in 1947, and was domiciled here at the date of his death.  His Will and two codicils thereto were signed the previous year.  Sir Francis, who had been married several times before, including a marriage to the grandmother of the Plaintiff, married Bridget Brenda Lynch ("Lady Cook") who was some thirteen years his junior and who survived him.  Lady Cook died on 25^th November 2018 and the First and Second Defendants are her executors, having obtained a Grant of Probate in the Probate Division of this Court on 5^th December 2018.

3.        There are several trusts relevant to the wider Cook family, namely:

(i)        the Cook 1934 Picture Settlement established on 31st January 1934 ("the 1934 Trust");

(ii)       the Cook 1939 Picture Settlement established on 24th August 1939 ("the 1939 Trust");

(iii)      the Doughty House Trust, constituted by clause 5 of the Will of the Late Sir Herbert Frederick Cook, father of Sir Francis, admitted to Probate in the High Court of Justice on 4th May 1939 (the "Doughty House Trust");

(iv)      the Sir Francis Cook Fine Art Trust (the "Fine Art Trust"), created by an indenture dated 23rd August 1973, the settlor being Sir Francis and the trustees being Hubert Edward Peter Baden-Powell ("Mr Baden-Powell"), who died in November 1993, and the Third Defendant (together the "Fine Art Trustees").

4.        The 1934 Trust, the 1939 Trust and the Doughty House Trust are together referred to in this judgment as the "UK Trusts" and the trustees of the UK Trusts from time to time are referred to as the "UK Trustees".

The Fine Art Trust

5.        Although there is no express election of proper law in the Fine Art Trust deed, there are provisions within it, such as clause 8(d), which suggest that it was intended to be governed by the proper law of Jersey; and it was made by a Jersey domiciled and resident settlor, has a Jersey trustee and governed much property which was Jersey situate property.  The issue has not been argued before me, but I have assumed the trust to be governed by Jersey law.

6.        There are some important recitals and definitions in the Fine Art Trust.  By Recital B, Sir Francis expressed his desire to vest paintings and drawings in his own hand, and recordings of music composed by him in the Fine Art Trustees to be held on trust for the benefit of his issue and family.  By Recital D, he noted that he and/or Lady Cook might transfer further paintings, etchings, prints, drawing or musical recordings to the Fine Art  Trust whether by act inter vivos or Will or Codicil.  By clause 1, the "Trust Collection" was defined as "all paintings drawings etchings prints musical recordings manuscripts, all such objets d'art and all movables as may be now or hereafter assigned or otherwise transferred to the Trustees by the Settlor or any other person or acquired by the Trustees in accordance with the provisions hereof".  The "Endowment Fund" was defined as including the shares in Noirmont Securities Limited ("Noirmont") and any funds or other property held in or accepted by the Fine Art Trustees as an addition to the Fund.  The "Augres shares" was defined as the shares in Cupid Securities Limited, which later changed its name to Augres Fine Art Foundation Limited and is referred to herein by the latter name and which owned real estate at Augres in which the paintings were exhibited.  The "Trust Property" was defined as the Trust Collection, the Endowment Fund and the Augres shares.

7.        The definition of the Appointed Class reflected a wide class of beneficiaries to include Sir Francis, his wife or widow, and his issue, their spouses widows or widowers and other family members. The "Appointed Day" was defined as one hundred and fifty years from the date of the deed (which was perhaps of arguable validity as a perpetuity period) or such earlier date as the Fine Art Trustees declared.

8.        By clause 2(a) the Settlor assigned to the Fine Art Trustees his right and title to and in all the paintings drawings etchings musical recordings and manuscripts of his composition or made or executed by him prior to the date of the deed.

9.        The substantive trusts in relation to the Augres shares are set in clause 5 of the deed as follows:

"The Trustees shall stand possessed of the Augres shares UPON TRUST to procure that the Company maintains the property or an equivalent property in Jersey or elsewhere should the Trustees consider it in their absolute discretion to be so desirable to house the Trust Collection and otherwise for the use and enjoyment of any one or more of the Members of the Appointed Class to the exclusion of the other or others as the Trustees shall in their absolute discretion think fit from time to time."

10.      The substantive trusts in relation to the Trust Collection are set out in clause 6 of the Deed as follows:

"During the period from the date hereof until the Appointed Day, the Trust shall hold the Trust Collection for the use and enjoyment thereof by any one or more of the Members of the Appointed Class to the exclusion of the others as the Trustees shall in their absolute discretion from time to time and at any time during such period think fit."

11.      The provisions regarding the Endowment Fund made it clear that its purpose was to maintain, house, restore and increase the Trust Collection.

12.      Clause 9(b) of the deed conferred power on the Fine Art Trustees, notwithstanding the trusts previously declared, to pay transfer or apply all or any of the Trust Property or the income thereof to or for the benefit of all or any one of the members of the Appointed Class to the exclusion of the other or others.

13.      From this summary of the relevant provisions of the Fine Art Trust, it may be thought that there were potentially conflicting objectives for the Trustees to consider when exercising their powers - the maintenance of an exhibition of these and other paintings on the one hand and an ultimate benefit for family members on the other. 

The Order of Justice

14.      By his Order of Justice dated 25^th November 2019, the Plaintiff claims that the Fine Art Trust was purportedly terminated by an appointment (the "Appointment") by the Fine Art Trustees to Lady Cook in 1984.  The assets were said to include the Augres shares; the paintings situate in the real estate owned by Augres Fine Art Foundation Limited; the shares in Noirmont and any funds or other property held in the Endowment Fund; Sir William Orpen's portrait of Sir Herbert Cook, Sir Francis' father; and the reversionary interest in all the assets and mobiliary effects that Sir Francis owned at the date of his death, or was entitled to at the date of his death, Lady Cook having life enjoyment.  These were said to include a number of valuable paintings as listed in the Order of Justice.  The Plaintiff claimed that there was uncertainty in relation to whether the Appointment was made or not, and if made, what it covered, and in any event the Appointment was said to be invalid because the Fine Art Trustees made a mistake as to the assets / value of the trust, because they failed to appreciate the existence or value of the reversionary interest in the assets owned by Sir Francis at the date of his death, and thus failed to take into account matters they ought to have taken into account and generally took irrelevant matters into account, and because the Appointment as a whole was made for an improper purpose, namely to benefit a non-object of the trust, Jersey Heritage Trust.

15.      The basis for the claim that the Orpen portrait of Sir Herbert Cook was in the Fine Art Trust lies in clause 10 of the Will of Sir Francis by which he expressly bequeathed it to the Fine Art Trustees to hold as an accretion to the Trust Collection.

16.      The basis for the claim that the other assets were in the Fine Art Trust lies in clause 13 of the Will of Sir Francis, which provided as follows:

"I GIVE AND BEQUEATH all paintings and mobiliary effects other than money and securities for money of which I may die possessed or to which I may be entitled at the time of my decease to my Executors and Trustees to hold upon trust for the use and enjoyment of my wife Lady Bridget Cook during her lifetime and subject thereto for the Trustees of the Sir Francis Cook Fine Art Trust aforesaid as an addition to the Trust Collection and upon the trusts thereof. For the avoidance of doubt, I do HEREBY DECLARE that except for those paintings and other moveables to which I specifically refer in this my Will the furniture and mobiliary effects situate at Le Coin, St Brelade, are except for those which are the subject of trusts the property of Lady Bridget Cook to whom I gave such mobiliary effects as I owned at Le Coin, on the fifth day of September, One thousand nine hundred and sixty three by delivering the same to her and evidenced by a deed of gift of that date, a copy of which is lodged with this my Will."

17.      Accordingly, a claim was made that the First and Second Defendants, as executors of Lady Cook's estate, were liable to account for and reconstitute the Fine Art Trust with the assets in the reversionary interest.  Alternatively there was a claim for an account and / or equitable compensation in respect of assets which had been converted where the trust could not be reconstituted.

18.      As a consequence of the foregoing, the prayer of the Order of Justice sets out a claim that the Defendants account for and pay or transfer assets in the reversionary interest to the Fine Art Trust by way of reconstitution of the trust and / or by way of equitable compensation as the Court may determine, and that the Court declare that the reversionary interest was transferred to Lady Cook by mistake and that the Appointment be set aside, whether for mistake or as having been made for an improper purpose.

The progress of the case

19.      Pleadings were exchanged, discovery and inspection took place and a date was fixed for trial.  Subsequently on 22^nd November 2021, the Plaintiff issued a summons seeking leave to amend his Order of Justice; the First and Second Defendants issued a summons on the same day seeking summary judgment and / or a strike out in respect of the entirety of the Order of Justice or in respect of paragraph 17 thereof and paragraph 1 of the prayer, as described below; and the following day, a summons was issued by the Third Defendant seeking summary judgment and / or a strike out in respect of the entirety of the Order of Justice.  By this stage, the Plaintiff was unrepresented.  Accordingly on 20^th January 2022, Advocate Le Maistre was appointed as amicus curiae by the Court.  On 4^th February 2022, the Greffier sat to hear those summonses, and his judgment was handed down on 12^th April 2022.

20.      The draft Amended Order of Justice filed by the Plaintiff, like the draft Re-amended Order of Justice (see below), is in substantially similar terms to the original proceedings, with these exceptions:    

(i)        There is expanded reference to a Deed of Gift (the "Deed of Gift") of 5^th September 1963 by which Sir Francis purportedly transferred all his furniture chattels and other moveable property other than money and securities for money and other property held on trust in or about the dwelling house which he shared with Lady Cook to her absolutely.  The Plaintiff asserted that Lady Cook had subsequently acknowledged that those assets remained in the ownership of Sir Francis.

(ii)       It was claimed that the assets in the Fine Art Trust included a portrait of Captain Hood / Viscount Bridport, painted by Sir Joshua Reynolds RA.

(iii)      It was claimed that Durer's painting 'Procession to Calvary' also fell within the reversionary interest.

(iv)      It was claimed that assets in the reversionary interest included not only the personal collection of paintings of (but not by) Sir Francis comprising seventy plus paintings, but also the fifteen Old Master paintings transferred by the UK Trustees to Lady Cook for her life with a reversion to the Fine Art Trust on her death.

(v)       Alternatively, Lady Cook and the Third Defendant had committed a fraudulent breach of trust and were therefore jointly and severally liable to compensate fully the Fine Art Trust both for the reversionary interest as well as the assets already owned by the Trust including the Reynolds portrait of Captain Hood and the Orpen portrait of Sir Herbert Cook. 

The Greffier's decision

21.      In short summary, the Greffier refused leave to amend on the basis that there were several fundamental issues with the application:

(i)        The application came extremely late - the parties had a proposed trial date of May 2022, and he considered there was a delay of more than twelve months between the date when the information upon which the Plaintiff relied came to his attention and the date when the draft Amended Order of Justice was circulated by him.

(ii)       The Court had given directions on 17^th September 2021, essentially at the instance of the Defendants, who asserted that the content of the documentary evidence which they had supplied, both voluntarily and during discovery had the result that many aspects of the Order of Justice were no longer sustainable.  At that time, the Plaintiff had not suggested that there would be any claim on his part that either the Third Defendant or Lady Cook had acted fraudulently.

(iii)      The proposed amendments failed to comply with the rules of the Royal Court and the principles of pleading - the substantive amendments were found to be verbose, unformatted and confused.  The legal basis of the claims was unclear. 

(iv)      The main purpose of the amendments was to add allegations of fraud and increase the number of paintings alleged to have constituted the reversionary interest.  The Greffier considered that the allegations of fraud were not sufficiently particularised, so that the Defendants did not know exactly what the Third Defendant and Lady Cook were accused of doing fraudulently.

22.      The Greffier also concluded that the Defendants would be successful in their claim for summary judgment for the following reasons:

(i)        The Plaintiff's assertion that the Appointment either did not exist, or, if it did exist, did not include the reversionary interest paintings listed at paragraph 17 of the Order of Justice and was demonstrably not supported by the evidence available.  Indeed, all that evidence supported the conclusion that there had been a valid execution of an appointment of all the Fine Art Trust assets to Lady Cook such that the Fine Art Trust was effectively terminated (notwithstanding the Appointed Day provisions) on 31^st March 1983.

(ii)       In respect of a number of paintings listed in clause 17 of the Order of Justice, the Defendants had produced documentary evidence to establish that those had been purchased by Lady Cook from the UK Trustees and the balance did not belong to Sir Francis at the date of his death.

(iii)      The Plaintiff had no realistic prospect of successfully proving his pleaded case as set out in the Order of Justice in the light of the documentation provided by the Defendants.  There was no real prospect of further documentary evidence being produced and such evidence as had been provided was sufficiently compelling to point clearly to a conclusion that the items listed in the reversionary interest 'were not in the ownership of the Trust [the Fine Art Trust] at the time of Sir Francis Cook's death and therefore could not have been affected by the terms of his Will.  There is nothing of evidential weight to convince the Court that the appointment of the Trust assets to Lady Cook either did not take place, was done so without the knowledge of Mr Baden-Powell or was facilitated by a mistake by the trustees.  Finally, there is nothing pleaded or available in evidence to sustain a claim for fraud or to rebut the affirmative defences for Mr Crapp.  I therefore conclude that the claim brought by Mr Cook has no real prospect of succeeding and there is no other compelling reason why the case should be disposed of at trial, and I order that the claim be summarily dismissed in accordance with Royal Court Rule 7/1.  It follows that I need not consider further the strike out application' [paragraph 98 of the Greffier's judgment].

23.      The Greffier also found that the Third Defendant's affirmative defences would be successful.  These were that the actions constituting an alleged breach of trust took place more than 21 years before the issue of the Order of Justice and a claim based on them was time barred under Article 57(3C) of the Trusts (Jersey) Law 1984 as amended, and secondly that the Third Defendant was entitled to protection under the exculpatory provisions of the Trust deed in circumstances where there was no evidence of wilful and individual fraud or wrongdoing on his part.

The appeal

24.      The Plaintiff appealed.  At a directions hearing on 7^th June 2022 before the Deputy Bailiff, the following orders were made:

(i)        Advocate Le Maistre could accept direct instruction from the Plaintiff, and therefore would not be appointed as amicus.  As it turned out, no instruction to appear was given and the Plaintiff represented himself.

(ii)       The Plaintiff should file by 5pm on Friday 29^th July an affidavit in support of his appeal and his application to amend the Order of Justice, with a further draft Amended Order of Justice encompassing all the claims he wished to make to be exhibited to that affidavit.

(iii)      The Defendants would have leave to file evidence in response by 12^th August 2022.

(iv)      The First and Second Defendants would have responsibility for the preparation of a joint bundle.

(v)       Skeleton arguments were ordered, and sundry other administrative directions given in relation to the appeal. 

25.      The Plaintiff duly filed a Re-Amended Order of Justice, supported by affidavit.  The main change in the Re-Amended Order of Justice was to transfer the particulars of fraud to an annex and expand those claims to eight alleged false statements and actions, details of which are referred to below.

Nature of appeal

26.      I was not addressed at any length on the precise approach to be taken in respect of appeals from the Judicial Greffier, but Advocate Kistler filed a detailed Skeleton Argument in this respect, referring to the Court of Appeal case of Victor Hanby Associates Limited and Hanby v Oliver [1990] JLR 337, Murphy v Collins [2000] JLR 276, Allscot Limited v AC Mauger and Sons Limited [2011] JRC 048 and Downes v Marshall [2010] JRC 115B.  Whilst accepting that the restrictive approach to appeals from the Registrar of the Family Division as adopted in Downes v Marshall was inapplicable to appeals from the Judicial Greffier, Advocate Kistler submitted that this did not mean that the Royal Court should hear such appeals from the Greffier de novo, that is as if the Greffier had not rendered his decision.  He submitted that that would make the application to the Greffier an expensive and wasteful step, as only the unfettered decision of the Royal Court would matter.  Accordingly, the correct approach of the Royal Court to hearing appeals from the Greffier was that set out in Murphy, namely that the appeal is not a re-hearing but the Court is entitled to look at matters afresh subject to some clear principles namely:

(i)        The judge should exercise his own discretion but was entitled to give such weight as he thought fit to the manner in which the discretion had been exercised below;

(ii)       No party had an unfettered right to begin again de novo, but was subject to the discretion of the judge as to the admission of further evidence and the reopening of matters already determined below; and

(iii)      In exercising that discretion, the judge would consider whether such evidence was credible and relevant.

27.      Thus it was said that this present appeal should not be a re-hearing de novo.  The Greffier's decision was the starting point, and it should be afforded due weight with the burden on the Plaintiff to show why the Court should depart from it. 

28.      In my judgment, it is clear from the Court of Appeal decision in Victor Hanby v Oliver that I am entitled to approach the matter de novo if I wish to do so, and to exercise a discretion unfettered by the exercise of discretion by the Greffier, while at the same time giving that decision due weight.  I do not read the decision in Murphy v Collins as essentially advancing a different test.  In any event, Murphy is a matrimonial case, and the position on appeals from the decisions of the Registrars is now well-settled by Downes v Marshall, which has been applied on several occasions.

29.      I indicated to Advocates Evans and Kistler at the outset of the hearing that I considered the pleadings from the Plaintiff, other than the original Order of Justice, were not in a satisfactory state and in many cases did not meet the rules of pleading.  Nonetheless, on a summary judgment application against a litigant in person, I considered that it was the Court's duty to attempt identification of what the real case was as well as what the pleaded case was.  In some cases, this might result in the refusal of a summary judgment application and the grant of leave to amend albeit not leave to amend in the terms which the Plaintiff was seeking.  Neither Advocate Evans nor Advocate Kistler suggested I should not take that approach.

The case the Plaintiff wanted to assert

30.      I put to the Plaintiff at the outset of the hearing a short summary of what I understood the essence of the claims to be, which was this:

(i)        The Fine Art Trust was set up for the benefit of the Cook family.  It had a number of assets as at the date of death of Sir Francis, including the Augres shares and the Noirmont shares (that company owned the Captain Hood portrait by Joshua Reynolds).

(ii)       At some point the Fine Art Trust had received other assets, namely the clause 17 paintings in the Order of Justice, by an appointment by the UK Trustees albeit that no document evidencing that appointment had been found.

(iii)      The Fine Art Trust had also received seventy plus paintings in the personal collection of Sir Francis under clause 13 of his Will.

(iv)      Finally, the Fine Art Trust had received the Orpen portrait of Sir Herbert Cook pursuant to clause 10 of Sir Francis' Will.

(v)       All these assets had vested in the Fine Art Trust on the date of Sir Francis' death, although many of the paintings were in the possession, for her lifetime only, of Lady Cook.

(vi)      At some point, Lady Cook had given away or sold some of the assets, and those unsold and not given away she purported to dispose of to her family and others by her Will. By dealing with assets the reversionary ownership of which lay with the Fine Art Trust in this way, she is liable to account to the Trust (and thus the First and Second Defendants, her executors, are so liable) for the assets, or their value as equitable compensation.

(vii)     Lady Cook would not have been able to act in this way without the assistance or connivance of the Third Defendant who had acted fraudulently, and because he had acted in that way, the Third Defendant was liable to account for any loss the Fine Art Trust had sustained.

(viii)    To the extent that the Defendants say that the UK Trustees had sold the clause 17 paintings to Lady Cook, the Plaintiff claimed that the UK Trustees had no records of such sales, and that the sales could not have taken place in the lifetime of Sir Francis without Her Majesty's Revenue and Customs raising tax assessments on them, and no such tax had been claimed.

(ix)      To the extent that the Defendants claimed that there was an appointment of all the Fine Art Trust assets in 1983 to Lady Cook, the Plaintiff asserted that there was no written copy of the Appointment, and it is thus unclear whether it existed, and if it did what it contained, but it stands to reason that it cannot have extended to assets which, on the Defendants' case, never arrived in the Fine Art Trust in the first place, namely the clause 17 paintings.

(x)       If the clause 17 paintings were included in the Appointment, it was a mistake; and in any event, the Appointment, if there was one, was an improper exercise of power by the Trustees of the Fine Art Trust because one of the trustees (Mr Baden-Powell) was not consulted and knew nothing about it and because the purpose of the Appointment was to benefit Jersey Heritage Trust which was not a beneficiary.

(xi)      The supposed sale of the Orpen portrait by Noirmont to Lady Cook should be set aside because the directors of Noirmont present were Lady Cook and the Third Defendant.  There is an obvious conflict of interest, and the co-trustee (Mr Baden-Powell) knew nothing about the proposed transaction.

31.       I then adjourned briefly for the Plaintiff to identify whether I had read his case correctly.

32.      On my return, the Plaintiff accepted the broad summary of his claim but helpfully clarified some points:

(i)           he no longer maintained that the Appointment to Lady Cook, if it existed, was made for an improper purpose.  That was deliberately omitted from the draft Amended Order of Justice and the draft Re-Amended Order of Justice;

(ii)          there were three relevant collections of paintings - the personal collection of Sir Francis consisting of some seventy plus paintings; the collection of Old Masters, including the fifteen Old Masters listed in clause 17 of the Order of Justice; and approximately 1,250 plus paintings by Sir Francis in his own hand.  The Fine Art Trust had had settled upon it by Sir Francis the paintings by his own hand in 1973, and those were validly now in the keeping of the Jersey Heritage Trust to whom they had been transferred by Lady Cook in or about 1984.  The Plaintiff made no claim to them.  The seventy plus paintings (Sir Francis' personal collection) belonged to Sir Francis at the date of his death and went into - and remained in - the Fine Art Trust by clause 13 of his Will. They were not the subject of the Appointment, if it existed.

The fraud claim

33.      That being the claim the Plaintiff wanted to assert, I had some questions for him in relation to the alleged fraud perpetrated by the Third Defendant and Lady Cook.  The premise for these questions was that a case in civil fraud, as in criminal fraud, requires that there must be a deliberate false representation made with the intention of causing thereby, and in fact having that result, actual prejudice to someone and actual benefit to the representor or someone else.  This was the formulation in Foster v AG [1992] JLR 6, It seemed to me that it was right to emphasise that an alleged lie told by someone after the event was capable of making that person's evidence unreliable, or indeed raising suspicion about earlier conduct, but was not capable in law of forming the basis of a claim of fraud which has caused loss.  It was essential that the fraudulent representation was directly linked to the allegation of loss and benefit which I have mentioned. 

The hearing

34.      With this in mind, I asked the Plaintiff to identify precisely what his allegations of fraud were.  This was particularly relevant to the extensive (but unparticularised and rambling) allegations of fraud set out in the annex to the Re-Amended Order of Justice.  On being pressed in this respect, the Plaintiff came up with only two examples of the fraud which he was alleging - the first was that Mr Baden-Powell was kept in the dark about the entire process, and, accordingly, the shares in Noirmont were transferred to Lady Cook without his knowledge and in the absence of a genuine share transfer form which he had signed.  The assertion was that the minute of the directors' meeting on 31^st March 1983 reflecting the presentation of a form evidencing a transfer of the shares from the Trustees of the Fine Art Trust to Lady Cook told a lie about itself - no share transfer form was in fact produced and the Third Defendant, Lady Cook and Mr David Moon, a solicitor in partnership in the firm of Mourant, du Feu and Jeune ("Mr Moon"), all of whom were recorded as present, were complicit in the fraud. There is no evidence to support this assertion.

35.      The second example given was that the list of paintings which Sir Francis had prepared in or about 1974 showed that he considered that he owned the paintings in question and, although the appointment of all assets was said to have taken place in 1983, it was said that Mr Baden-Powell considered that the Fine Art Trust still existed in 1984/85, evidenced by the fact that he wanted to send over a portrait, painted by Sir Francis, of Mr Baden-Powell's daughter Victoria so that it could be exhibited alongside the Sir Francis portrait of Victoria's brother Harry.  The difficulty with this latter example, of course, is that a wish to see the two portraits exhibited together is just as consistent with a belief by Mr Baden-Powell that the Jersey Heritage Trust were exhibiting the works in question and not the Fine Art Trust; and there is also no detail of any fraudulent misrepresentation asserted to have been made by the Third Defendant.

36.      After the close of the Plaintiff's address, Advocate Evans took me through the documentation in relation to the clause 17 paintings in detail with a view to establishing that a large number of them had clearly been bought from the UK Trustees by Lady Cook.  We adjourned at approximately 5.15pm on the 7^th September, and first thing the following morning the Plaintiff asked for permission to say something further which, he said, might save time.  He passed me a written statement which I read aloud and was to this effect.  He had not realised that documents which were in the Court bundle were provided by Advocate Hoy, then acting for him, on his behalf and not from the Defendants when he swore the affidavit for discovery.  He now realised that the communications including the minutes of the meeting of 31^st March 1983 were genuine and that his former view that the Third Defendant had fabricated evidence was unfair and untrue.  He said it would therefore be wrong for him to retain his position that either Lady Cook or the Third Defendant were fraudulent in any way. 

37.      The Plaintiff said that he no longer wished to pursue his action with regard to the fifteen Old Master paintings, nor the Reynolds' painting of Captain Hood.  He no longer complained that Mr Baden-Powell, the Third Defendant's co-trustee, was not involved in what was done in relation to the Appointment in 1983.  He accepted that all this was a long time ago and that unless fraud was alleged, there was nothing that could be done about it.  It seemed clear to me that as he did not allege fraud, that was an end to the matter insofar as those claims were concerned.  As his case was that the UK Trustees had made an appointment of the Old Masters to the Trustees of the Fine Art Trust, he must be taken to accept that the Appointment included those paintings or that Lady Cook did indeed buy them - it was unclear which of these represented his position.  I make that comment recognising the Defendants' contentions - which seemed to me persuasive - that the evidence shows that in fact Lady Cook purchased the paintings in question and did not receive them from any appointment by either the UK or the Fine Art Trustees.  Indeed, there is no evidence that the UK Trustees made any such appointment, whereas there is evidence in the correspondence at the time that the Fine Art Trustees made the Appointment, albeit a copy of the document itself is no longer available.

38.      The Plaintiff said that he wanted to maintain his claims about the seventy plus paintings (the personal collection) and to amend his Order of Justice to focus on those and nothing else.  He was seeking a one or two day trial when witnesses could be examined and cross-examined to ascertain if Sir Francis and Lady Cook had ever agreed that this collection was not part of the Deed of Gift, or if it was, that she had agreed to give the collection back to him.  He also wanted to argue that even if there was an appointment out to Lady Cook in 1983 of some assets from the Fine Art Trust, the personal collection would not have been included.  The Court adjourned briefly so everyone could consider this revised position.

39.      On my return, the Plaintiff confirmed that Sir Francis had transferred the 1,250 plus paintings by his own hand to the Fine Art Trust in 1973.  He did not wish to contend that there was no appointment by the Fine Art Trustees in 1983.  It followed that the paintings by Sir Francis in his own hand had validly been transferred to Lady Cook by that Appointment, and there was no objection to her transfer of those paintings to Jersey Heritage Trust; likewise, that if the Old Masters had been within the Fine Art Trust, as the Plaintiff had originally contended, they too must have been the subject of the Appointment.  Equally there was no claim to the Endowment Fund which had been settled in 1973 and no claim to Augres Fine Art Foundation Limited, which had been liquidated and consequently the property conveyed out to Jersey Heritage Trust.  All those parts of the original claim were thus conceded.

40.      What remained was the claim to the Orpen which was said legally to continue to be within the Fine Art Trust pursuant to clause 10 of the Will of Sir Francis, and to the personal collection of seventy plus paintings pursuant to clause 13 of the Will of Sir Francis, which likewise he asserted legally remained in the Fine Art Trust because they were not included within the Appointment. 

41.      Furthermore, the Plaintiff accepted that the 1983 settlement between Lady Cook and the UK Trustees had in fact settled all matters between the UK Trustees and Lady Cook.  The document evidencing that settlement stood as a valid document according to its terms.  On further clarification, given that there was no challenge to the existence of the Appointment, the Plaintiff accepted that no breach of trust in relation to that Appointment was alleged.  The Plaintiff accepted that it was permissible for the Fine Art Trustees to appoint the reversionary interest in the assets which the Fine Art Trust held to Lady Cook, who had life enjoyment of them.  As emerged during the hearing, the only question was the extent of the Appointment.  The Plaintiff asserted that the Appointment did not include the personal collection, nor did it include the Richardson painting of Walpole, the two Pocock paintings of Viscount Trafalgar and Lady Charlotte Nelson, the Hopner painting of Nelson's brother, in two pieces, the portrait of William Stephens, the portrait of Vera by George Spencer Watson and the portrait of Rachel, also by the same artist, all of which are referred to in clause 17 of the proposed Reamended Order of Justice. The Defendants by contrast asserted that the entire trust fund was appointed out to Lady Cook on 31 March 1983.

The Deed of Gift

42.      There is dispute between the parties as to whether these assets were the subject of the Deed of Gift, and, if they were, as to whether ownership of them passed back to Sir Francis by reason of an agreement between him and Lady Cook in Nassau (the "Nassau Agreement") in or about 1968.  If the Deed of Gift was superseded by the Nassau Agreement, the assets in question formed part of the estate of Sir Francis at the date of his death.  If they did not, and were subject to the Deed of Gift, the assets belonged to Lady Cook, and were not covered by the Will of Sir Francis.

43.      The material part of the Deed of Gift provided as follows:

" In consideration of his natural love and affection for his wife, Lady Bridget (sometimes "Brenda") Cook, of Le Coin aforesaid (hereinafter called "the Donee") the Assignor [Sir Francis] hereby assigns unto the Donee all the furniture, chattels and other property (other than money and securities for money and other property held on trust) in or about the dwelling house of the Assignor at Le Coin aforesaid or in or about the outbuildings and garages thereto, to hold the same unto the Donee absolutely. "

44.      That drafting requires one to establish of course what paintings and other mobiliary effects were in and about the property Le Coin in 1963, no obviously straightforward task.  In addition, unfortunately, we do not have a copy of the Nassau Agreement.  It is also apparent from clause 13 of Sir Francis' Will that he considered the Deed of Gift to be valid and effective.  Certainly, he makes no mention there of the Nassau Agreement.

45.      It may well be that one should be cautious about the application of maxims of Jersey law which appear in Le Gros' Traité du Droit Coutumier de L'Ile Jersey (1943) at page 455.  Nonetheless, pithy though they are, the maxims do flag up short summaries of underlying principle.  One of them is that 'en fait de meubles, possession vaut titre'.  It is therefore perhaps a starting point that if a person has moveable effects in his or her possession, he or she is entitled to them. Historically, there needed to be a delivery of the goods to the person claiming ownership in order that such person had possession - see for example Godefroy's commentary at Tome 2 p 150 on the Coutume Reformée du Pais et Duché de Normandie (1684 edition) where the author said:

" Et quoy qu'anciennement la tradition fut necessaire pour la perfection de la donation"

46.      Indeed, that was the underlying rationale for the rule that donner et retenir ne vaut (rien) set out in Article 444 of the Coutume Reformée.  Of course, that becomes difficult where there is a purported gift between persons living in the same household.  This issue could be of particular importance in any succession question, given the rules in Jersey law around the légitime, relevant perhaps to Sir Francis who had acquired a Jersey domicile before 1963 and had fathered two children with a previous wife before Lady Cook.  Indeed, some practitioners took the view that, in order to achieve a valid gift, there had to be a completed delivery of possession from donor to donee, a physical delivery of moveable property rather than the completion of a mere document of assignment.  By contrast, there is also reference in the older authorities to a principle that different considerations applied where there was a marriage contract, or, perhaps more controversially, to a contract of gift within a marriage.  Interesting as those might be, whether such arguments could be run in relation to the Deed of Gift (notwithstanding the terms of clause 13 of the Will of Sir Francis which appears to indicate that delivery had taken place) or to the so called Nassau Agreement (where self-evidently a physical delivery of possession could not have taken place by virtue of its geographical distance) was not canvassed before me and does not appear on the pleadings; nor in my judgment is it necessary at this stage because either the assets in question belonged to Lady Cook because the Deed of Gift was valid, in which case the Will of Sir Francis has no traction and a claim by or on behalf of the Fine Art Trust cannot succeed; or they belonged to Sir Francis in which case the reversionary interest devolved on the Fine Art Trust according to Clause 13 of his Will.

47.      I do not need to decide whether the Deed of Gift or the Nassau Agreement was valid because, on the assumption made against the Defendants for the purposes of this judgment only that the assets now in question fell into the estate of Sir Francis, the argument resolves itself into a simple question, namely the scope of the Appointment.  Such a question would normally require a construction of the Deed.  It is true that sometimes the language used in deeds of appointment is not as straightforward as it ideally should be; but that does not arise here because we do not know what language was used as no one has a copy of the Appointment, although from correspondence at the time, it appears that a copy was circulated to a number of persons.  Accordingly, given that there is no dispute that the Deed existed, extrinsic evidence is needed as to its ambit.

What evidence is there?

48.      Here it is clear that the Plaintiff has no evidence of his own to volunteer.  He was not a trustee and was not involved in 1983 when the arrangements, whatever they were, were made.  The Third Defendant's co-trustee, Mr Baden-Powell, is not alive to tell us what he did.  Lady Cook, the recipient of the bounty, whatever it was, by the Appointment, is also not alive to tell us what it included.  It appears that the only direct evidence as to what the Deed included could be given by the Third Defendant.

49.      In that context, I note that the Third Defendant gives his recollection that there had been an appointment of the whole of the Fine Art Trust assets, following which the Trust was terminated.  It was his recollection that Mr Moon prepared the necessary legal documentation to achieve that.  It would not be unfair to the Third Defendant to say that anyone could have some doubts about the accuracy of his recollections if they stood alone.  He is in his late 80s and was a partner in accounting firms in the island between 1962 and his retirement in 1991.  Over that period, he undoubtedly dealt with a very large number of clients covering a wide variety of business.  The notion that his recollections would be necessarily reliable, if they stood alone, would be perhaps surprising.  At that point, if there had been no other evidence, the application of the Plaintiff might have been suitable for trial as a quasi-construction summons (without the document to construe) albeit that, the burden of proof lying on him who makes the contention, the Plaintiff might have had some difficulty in establishing his case as to what the scope of the appointment was.  The high point for the Plaintiff seems to me to be those parts of the Fine Art Trust which could suggest that the trust was intended to last for a long time and benefit Sir Francis' family over the generations.

50.      However, there is other evidence, and in my judgment it all tends to support the recollections of the Third Defendant. I do not need to go through it in every detail but to me the salient parts of the evidence are these:

(i)        Both Mr Baden-Powell, the Third Defendant and Lady Cook were aware of the wishes of Sir Francis that his collection of paintings (the seventy plus paintings, if he owned them, and those by his own hand) should be exhibited for the benefit of the public.  The costs of creating such an exhibition were accepted to be a factor seriously to be considered and it was this aspect which led to the discussions with Jersey Heritage Trust.  The question was how those wishes might be achieved and there is no obvious reason why the Appointment should have covered some but not all of that collection.

(ii)       It is clear that the Fine Art Trustees took advice in 1982 from Mr. Moon as to whether the whole fund could be appointed to Lady Cook.  The advice itself has unfortunately not been traced either, given the passage of time, but in a letter dated 27^th May 1982 there is reference to the advice that the whole fund could be so appointed. That possibility must have been in the minds of the Fine Art Trustees, or the question would not have been asked.

(iii)      On 19^th November 1982, Lady Cook wrote to the Third Defendant to say 'As you know, it has always been my desire to carry out Francis' wishes to the best of my ability and if the Trustees are minded to appoint the Trust assets to me it would be my intention to make quite sure that Francis' pictures were preserved and available for viewing'.  Of course, it is true that that reference might have been only to the paintings in his own hand, but there is no obvious reason why it should be restricted to those paintings.  If the seventy plus paintings were his, or by virtue of the Nassau Agreement she thought they were, this is language which she would have used to cover them.

(iv)      On 31st March 1983, the Third Defendant wrote to the insurance brokers previously handling the insurance of paintings at the Augres Gallery to say this:

"The following information is confidential and I am sure that you will keep it this way but all the paintings by Sir Francis at Augres are now Lady Cook's personal property and the insurance should therefore be transferred into her name.

All the furniture and fittings etc, contents of flats etc, ie everything other than the paintings by Sir Francis belong to Augres Fine Art Foundation Limited.

Would you please take the appropriate action to keep the entire contents covered but for the benefit of the company or [Lady Cook] as appropriate."

That letter was acknowledged by the brokers on 13th April.

(v)       On 24th April 1983, there is a letter from the executor of Sir Francis' Will, Mr Michael Le Gros.  The letter opens with a reference to Mr Moon's letter of 22nd April concerning 'the termination of the Fine Arts Trust'.  Mr Le Gros (who is also now deceased) continued 'I have signed and enclose the two documents acknowledging that I have been notified of the assignment of the assets to Lady Cook'.  So there we have a reference to the termination of the Fine Art Trust, and the assignment of assets (I note that is in the plural so it could not refer only, for example, to the Orpen) to Lady Cook, again in unqualified terms.  The Defendants' submission is that notice was given to Mr Le Gros as executor of the late Sir Francis Cook's estate so that he could be advised that, Lady Cook at that stage still being alive and entitled to the life enjoyment of the assets of question pursuant to the Will of Sir Francis, he need no longer worry about the transfer of the reversion to the Fine Art Trustees because that Trust had been terminated and the assets appointed to Lady Cook.  That submission seems to me to summarise the most natural reason for such a letter. It is obvious that the letter to Mr Le Gros would not have been necessary had the assets contemplated been the paintings of Sir Francis by his own hand, because those had entered the Fine Art Trust on the constitution of the Trust in 1973 and thus never formed part of Sir Francis' estate. It follows that the assets contemplated must have been the personal collection of Sir Francis and/or the Orpen and/or the clause 17 paintings (other than the Old Masters which were clearly in the ownership of Lady Cook as the Plaintiff now accepts).

51.      It is not impossible that the Trustees of the Fine Art Trust at the time considered that the personal collection of Sir Francis no longer belonged to him because it was covered by the Deed of Gift in 1963.  Apart from the Le Gros letter which as indicated above suggests the opposite is true, the difficulty with this submission, however, is that ultimately it is pure conjecture.  The evidence from the Third Defendant is that his recollection is that the whole of the Trust assets were appointed to Lady Cook, and there is no evidence to the contrary: indeed the documentary evidence, although potentially giving rise to a different reading, also supports the Third Defendant's recollections.  On the assumption that the assets which the Plaintiff now claims on behalf of the Fine Art Trust were in that trust in 1983 as he says, there is no evidence that they would not have been appointed out to Lady Cook, consistently with the intentions expressed by the Trustees at the time reflected by the enquiry to Mr Moon and the letter to Mr Le Gros referred to above.

Conclusion

52.      I am sure that the Third Defendant and indeed the executors appreciate the concession which the Plaintiff made in the course of the appeal in which he absolutely withdrew any suggestion of wrongdoing or fraud by the Third Defendant and/or Lady Cook, or any breach of trust by the Third Defendant.  The withdrawal came rather late in the day, and I hope that the Plaintiff himself now realises the anxiety that the allegations will have caused the Third Defendant (in particular) earlier in these proceedings.  Where allegations of fraud are made by litigants in person or advocates without a focus upon the need to demonstrate that a loss or gain has been caused intentionally by a defendant's fraudulent representation, the Court should in my judgment be assiduous to enforce the rules of pleading, whether the parties are litigants in person or not. The allegations of fraud in this case should never have been made.  There was no focus in them, and the amended  pleading simply besmirches the Third Defendant's integrity without any justification or particularisation.  The fact that the Plaintiff is a litigant in person and not a qualified lawyer is no excuse.

53.      At the end of the day, however, the Plaintiff's case has become a relatively simple case of construction in respect of the Appointment.  In my judgment, the evidence is against him, and it is not at all obvious that he has - or will have  - any evidence to support the contention which he wishes to advance. 

54.      I do not need to consider leave to amend both because the Order of Justice is not in a shape where such leave to amend could be given and because, upon the basis that the claim has been correctly summarised - as the Plaintiff accepted in the course of the hearing - there is no proper defence to an application by the Defendants for summary judgment and the dismissal of the Plaintiff's claims.  The appeal is accordingly dismissed.

Postscript

55.      The draft judgment, substantially as set out above minus some minor additions, and typographical and factual errors I have subsequently corrected, was sent to the advocates in the usual way for comment.  I very much regret that due to an administrative error in the Bailiff's Chambers, the draft was not sent to the Plaintiff who has represented himself on this appeal, but I am pleased to record that Advocate Evans sent the draft to the Plaintiff directly.  Through his colleague, Mr Harry Baden-Powell, the Plaintiff has provided detailed comments on the draft.

56.      The draft judgment was sent out by email with the usual language which makes it plain that, while still subject to potential amendment, the primary purpose of doing so is to enable the parties to consider the judgment and decide what consequential orders, if any, they seek.  The secondary purpose is to enable the parties to submit suggestions to the Court about typing errors, factual errors wrong references and other minor corrections of that kind.  The advocates for the Defendants followed this rubric in their suggestions, all of which I have accepted in one form or another.

57.      The Plaintiff did not follow that course, perhaps because he did not see, or did not appreciate as a litigant in person, the directions as to the purpose of sending out the judgment in draft.  His response was in effect a complete reversal of the concessions he had made in the hearing before me.  He asserted that he wanted to have " a full trial with witnesses and the Plaintiff will continue with the whole of all his original claims"  and he contended that on behalf of SFCFAT he wished to continue the allegation of fraud against Lady Cook and the Third Defendant.  He also asserted that Lady Cook, Patrick and James Lynch and "also (whether directly or indirectly) .. both Third Defendant Leslie Crapp and their common lawyer, Advocate Michael Clapham" had told and kept "an extraordinary lie" concerning the blood relationship between Lady Cook and Messrs Lynch.

58.      This remarkable volte face is said to be justified on the ground of what is said to be extremely relevant new evidence, which was not available to him, or not realised by him earlier.  The first piece of such new evidence consisted of two emails sent by or on behalf of the Plaintiff to Mr Nicholas Barlow of Monro Wright & Wasbrough LLP, solicitors in London, concerning the latter's letter of 6^th March 2020.  Mr Barlow is, as far as I understand it, one of the UK Trustees.  The emails were dated 26^th September 2022 from the Plaintiff to Mr Barlow seeking urgent clarification of that letter and a further email from Mr Harry Baden-Powell dated 28^th September 2022 to the same effect.  I have not been provided with any reply from Mr Barlow to those later emails.  There is thus no new evidence as such in respect of this email traffic, merely a set of express or implied questions to which there is currently no answer.

59.      The hearing of the appeal was completed on 8^th September.  The concessions in question were made before the Third Defendant's advocate had addressed me and they must have had an impact on his submissions.  It would be grossly unfair to allow the Plaintiff to resile from them.  Furthermore, leave would be required to adduce further evidence at this stage, and none has been sought. If it were sought, I would refuse it. The Plaintiff has had more than ample opportunity to get his case in order.  The September emails seeking urgent clarification could have been sent months ago.  There is a public interest in taking a case forward with reasonable dispatch as is evidenced by the reference in the Royal Court Rules 2004 to the overriding objective.

60.      Nonetheless, I will deal with the matters now raised.

61.      Copies of the letter of 6^th March 2020 were in the trial bundle (twice at least), together with an email from Mr Harry Baden-Powell dated 17^th November 2019, which evidences the request to Mr Barlow.  Also in the bundle is a copy of the letter dated 23^rd July 2020 from the First Defendant to Mr Barlow enclosing a bundle of 144 pages of documentary evidence (also sent to Advocate Hoy then acting for the Plaintiff), which was available to the executors.  There is no reason on the face of it to think that Lady Cook or the executors would have in their possession correspondence between the UK Trustees in 1967 and thus no reason to think that the copy correspondence referred to in paragraph 63 below was sent by the First Defendant to Mr Barlow.  The thrust of the First Defendant's letter was that Mr Barlow must have been misinformed when responding to the Plaintiff on 6^th March 2020 and to ask that Mr Barlow contact the writer when he had retrieved his files from "deep storage".  After some reminders, Mr Barlow responded to the First Defendant on 30^th September 2020.  In summary, that response confirmed that the UK Trustees were not involved in the Fine Arts Trust and had no information regarding the paintings or chattels referred to in clause 13 of Sir Francis' Will.  He informed the First Defendant that HMRC had no evidence of the "Picture Settlements", which I take to mean the UK Trusts.  He confirmed that he was in correspondence with Advocate Hoy to advise him that historic documentation had been located in deep storage.

62.      The Plaintiff had asserted in court on 8^th September 2022 that it was only the previous day that he realised that the Defendants were arguing that the documents showing the sales of the Old Masters to Lady Cook were produced in his own discovery in these proceedings; and that that was the reason he had made the concessions he did.  He submitted to the Court in his email of 26^th September 2022 that if those documents were valid, they must have come from the UK Trustees, but his understanding was that Mr Barlow did not recognise them.  The Plaintiff does not say why he had that understanding.  The letter from Mr Barlow of 30^th September 2020 demonstrates that he was in contact with the Plaintiff's then Jersey advocate and the starting assumption would be that he responded to the Plaintiff's claims regarding the sales of the Old Masters by sending to the Plaintiff's lawyer the documents in question.  That would explain why the documents formed part of the plaintiff's disclosure in these proceedings, as I was informed was the case.  There is also no reason to think that there was anything suspicious about the documentation evidencing the sales to Lady Cook - if there were, it would be surprising if  Advocate Hoy had not taken the issue further.

63.      I add that, in my view, a study of the documentation, shown to me in detail by Advocate Evans at the hearing, shows the documents on their face to be intrinsically credible.  They are copies (it would seem photocopies of carbon copies) of letters from the Manager of the Trustee department of, I assume, Royal Exchange Assurance to Mr Wasbrough, both of them Trustees of the 1934 Trust.  They referenced the sales of pictures to Lady Cook at specified prices and the negotiations which affected some of those sales.  There is a reference at the head of each copy letter to two different files - which would be consistent with the maintenance by Royal Exchange Assurance of files relating to the 1934 and the 1939 Trusts.  There is a reference to Christie's auctioneers and to deductions made from the sale prices received in respect of Estate Duty with a reserve for Capital Gains tax.  It is true that there is no initial or signature on the copies from which one might identify the author of the letters, but that was in my experience entirely standard practice at the time the letters were written in 1967.  Far from there being anything suspicious about the copy correspondence, it has all the hallmarks of authenticity.

64.      Nor is it likely that any further evidence about these letters could be forthcoming. I have assumed Mr Wasbrough to be dead because I note (from Sir Francis' Will) that he took out a grant of probate in respect of the will of Sir Francis' father on 30^th June 1939; and the writer of the letters i.e. the Manager of the Trustee department, is not identified.  As at least some of the letters were written in the early months of 1967, it would be remarkable if any credible evidence could be given about them anyway.

65.      The Plaintiff contends that if the documents did not emanate from the UK Trustees - and let me emphasise that it is pure conjecture to say they did not - they must have been drafted by the Third Defendant in conjunction with Lady Cook, which would make them both guilty of fraud.  This is conspiracy theory at its worst: a good example of a plaintiff asserting what he wants to believe when there is absolutely no evidence to support his view - in this case, the view that the letters did not emanate from the UK Trustees.  To the extent that the Plaintiff relies on the evidence that HMRC have no record of the Picture Settlements or estate duty or capital gains tax being paid as the sales took place during the lifetime of Sir Francis, it is in my view entirely unsurprising that the Inland Revenue, the predecessor of HMRC, might no longer have files which might have been relevant 55 years ago; especially is this so if the tax which was due at the time had been paid, as the deductions from the sales prices would seem to suggest.  The contention that the documents were forgeries fraudulently made by Lady Cook or the Third Defendant is an allegation which should never have been made, was rightly withdrawn at the hearing and should certainly not have been repeated in the most recent submissions once the draft judgment was available.

66.      Apart from these considerations, which are fatal to the Plaintiff's claim to the Old Masters, the allegation does not assist the Plaintiff, even if true. If true, the consequence would have been that the UK Trustees had not sold the Old Masters to Lady Cook and if that were so, they would remain in the legal ownership of the UK Trusts.  They would not be governed by the Will of Sir Francis and would not therefore accrue to the SFCFAT by clause 13 of that Will.  It would be up to the UK Trustees to claim them, and indeed it would be surprising if Mr Barlow, alerted to the position in 2020, had not taken that claim further.  But there is no evidence he has done so, and such evidence as there is suggests he has not and will not.

67.      The Plaintiff has also raised in his email of 26^th September the assertion that the First Defendant has lied on oath about the relationship between Lady Cook and Messrs Lynch.  The First Defendant describes his belief they are her nephews.  He has exhibited documentation which suggests that to be true, including birth, death and marriage certificates, and a witness statement signed by Lady Cook in 2016, albeit the purpose of that statement is unclear.  The criticism that this witness statement makes it clear that James, despite being Patrick's younger brother, is no blood relation to her is plainly absurd as any careful reading of that statement illustrates.

68.      Compared with this documentation, evidence from some witnesses such as Mr Harry Baden-Powell that he has no recollection of Lady Cook ever referring to the Messrs Lynch as her nephews is not persuasive.  In any event, I do not think this is important in the context of the dispute which is before me.  Sir Francis may or may not have been aware of the blood relationship, but, even making every assumption against the Defendants for the purposes of this judgment only, he must be taken to have realised that, blood relatives or not, his widow would have freedom of disposition by her Will over anything which she owned at the date of her death.

69.      Nothing in the revised submissions begins to address the construction of the Appointment, which is the basis for this judgment. I had made the assumption, for the purposes of the judgment only, that the Defendants would lose on the validity of the Deed of Gift or the Nassau Agreement and that the seventy plus paintings therefore would fall into the estate of Sir Francis and be governed by clause 13 of his Will (see paragraph  47 above)  but for the reasons given in the draft judgment, I accepted that, in the absence of the Appointment Deed itself and any possible relevant evidence from the Plaintiff, the evidence provided by the Defendants supported the conclusion that the Appointment extended to all the assets in the SFCFAT when it was executed and summary judgment in favour of the Defendants was appropriate. The Judicial Greffier had reached the same conclusion and I am entitled to give some weight to his view as well.

70.      In other words, notwithstanding that the Plaintiff went far beyond what was permissible in his comments on the draft judgment, and notwithstanding that I would be entitled to refuse him leave to reverse the concessions he rightly made at the hearing, there is nothing in what he has subsequently submitted which would cause me to change my conclusions. The Plaintiff's appeal is dismissed.

71.      Given that the Plaintiff is not resident in the jurisdiction, I will accept written submissions in respect of any potential costs orders and decide the matter on the papers, although I will certainly sit to receive oral submissions if both parties so request.  If written submissions are to be made, I take the view that, without deciding it, the Defendants, as the successful parties could reasonably expect an order for costs of some sort in their favour.  Accordingly, I direct that the Defendants file and serve any written submissions within the 14 days following the handing down of this judgment, and the Plaintiff files any response within 14 days of receiving the Defendants' submissions, in both cases with liberty to apply.

Authorities

Cook v Clapham and Ors [2022] JRC 091. 

Trusts (Jersey) Law 1984. 

Victor Hanby Associates Limited and Hanby v Oliver [1990] JLR 337. 

Murphy v Collins [2000] JLR 276. 

Allscot Limited v AC Mauger and Sons Limited [2011] JRC 048. 

Downes v Marshall [2010] JRC 115B. 

Foster v AG [1992] JLR 6. 

Le Gros' Traité du Droit Coutumier de L'Ile Jersey (1943). 

Coutume Reformée du Pais et Duché de Normandie (1684 edition)

Royal Court Rules 2004