Estate - judgment in relation to two summons
Before : |
Advocate David Michael Cadin, Master of the Royal Court. |
Between |
Elleonerd Dawn Millard, née Bosworth (former wife of Michael Royston Bosworth) |
Plaintiff |
And |
Annette Stone, née Cox (wife of Timothy Stone) |
First Defendant |
|
Timothy Stone |
Second Defendant |
And |
Marcus Kraig Stone |
Third Defendant |
|
Advocate Olaf Blakeley |
Fourth Defendant |
Advocate P. C. Sinel for the Plaintiff.
Advocate M. L. Preston for the First and Second Defendants.
Advocate M. St J O'Connell for the Third Defendant.
Advocate O A Blakeley in person
judgment
the MASTER:
1. This is my judgment in relation to two summonses that I heard on 6 December 2024, namely:
(i) a summons dated 10 September 2024, issued by the Plaintiff, for firstly, specific discovery of documents listed in a schedule of defects and deficiencies, and secondly, a list of all benefits received from the late Annie May Bosworth (the "Deceased") verified by affidavit;
(ii) a summons dated 4 November 2024, issued by the Third Defendant, for the Plaintiff to provide answers to a Request for Further Information.
2. These proceedings have been before the Court previously and are subject to a number of previous judgments, including those reported at Millard v Stone [2022] JRC 023, Millard v Stone [2022] JRC 262, and Millard v Stone [2023] JRC 186. Given that those judgments contain detailed descriptions of the factual background to these proceedings, for the purposes of this judgment, I confine myself to the procedural narrative.
3. The Deceased died in March 2020, and proceedings were issued a year later. On 25 August 2021, Master Thompson ordered that:
(i) the Plaintiff and the First Defendant provide supplementary pleadings identifying any lifetime gifts received by them from the Deceased;
(ii) the parties provide limited discovery to one another in relation to identified categories of documents; and
(iii) thereafter the proceedings be stayed for ADR.
4. ADR was unsuccessful and the Plaintiff subsequently issued a summons for specific discovery which came before Master Thompson in January 2022 (reported at Millard v Stone [2022] JRC 023). That application was refused but the Master made an order for general discovery and gave permission to the Plaintiff to file a draft Amended Order of Justice, with a view to seeing whether it might be capable of agreement between the parties.
5. The proposed amendments were not agreed and were the subject of a contested hearing before Master Thompson (reported at Millard v Stone [2022] JRC 262). In the course of his judgment, Master Thompson dealt with the position of the-then executor, and the possibility of a new, independent executor being appointed:
"53. The other issue to note as a matter of principle is that prima facie the claims for an account in relation to how assets of the deceased were dealt with by others on her behalf are vested in the executor on behalf of the deceased. It is therefore for the executor to review these claims from a neutral standpoint and decide whether or not to pursue them. Something therefore needs to be pleaded to justify a beneficiary exercising those rights. Although the question of conflict has been raised it has not been pursued either by an invitation to resign or by a court application to appoint another executor both of which would address any conflict issue.
54. The executor also has the advantage of having the right to call for documents from the deceased's bankers, the deceased's credit card and in respect of share investments. Advocate Young confirmed that he had received all documents that still existed from each of these entities subject to the query raised by Advocate Sinel the day before the hearing referred to above which Advocate Young agreed to look into. I have referred to this because it is the executor who has the right to call for information from the financial institutions who dealt with the affairs of the deceased to obtain such records as still exist. That information then allows the executor to review as far as the executor is able to do so, the payments challenged by the plaintiff and any other payments of concern that the plaintiff suggest should be reviewed. The third defendant in his affidavit has provided certain explanations as far as he able to recall the same without the benefit of a forensic exercise. It is therefore also a matter for the executor to review these answers and decide whether he accepts them or not and, if he does not, what action he proposes to take. An independent executor can also review any limitation questions that might arise as noted above.
55. It should also not be forgotten that this a dispute essentially where two sides of a family are at loggerheads. The phrase internecine warfare has been used in respect of disputes between beneficiaries of trusts. This case at its lowest runs that risk. There is certainly a lack of trust between the parties which is clear from the way allegations have been framed in previous drafts and then not pursued. In that regard Advocate Sharp forcefully suggested that the plaintiff was conflicted as she was seeking to review the affairs of the Stone family but, given assertions previously dropped, she would not review her own family's affairs and yet they had benefitted too. These assertions further confirm the importance of an executor, provided it is independent or seen to be independent, having the advantage of being able to stand above the dispute and review matters impartially.
56. In contrast to a position an independent executor might adopt, Advocate Sinel did not hold back from making it clear that he and his client wanted to review the affairs of the first to third defendants over many years and in some respects long before any questions of capacity or undue influence might arise. The discovery he was seeking confirmed this approach.
57. However, a review by an independent executor allows for an impartial assessment of how far estate assets should be spent on pursuing causes of action to recover monies from family members and avoids the obvious dangers of one side of a family dispute suing another family member. There may be cases where that situation has to occur but the threshold has not been met to plead that this is one of those cases."
6. Master Thompson went on to note that:
"63. In relation to the argument relied upon by the plaintiff of an overlap between the claim for rapport and the claims for an account, this argument does not give rise to a case that is capable of being pleaded as special circumstances [for the purposes of a derivative claim].
64. It is clear that the primary claims the plaintiff wishes to bring are for an account. If the responses of the defendants to claims for an account are that what has been paid over or spent were gifts, that can be dealt with by the executor, possibly in consultation with other family members whether the recipient should be required to return any monies found, absent any election to rester sur ses avances.
65. Such an outcome however is only a consequence of a claim to account being made. In principle a claim for an account for how a person has spent the monies of a person whose affairs they are looking after and a claim to account for lifetime gifts are separate concepts and causes of action. The fact that a defence to any claim to account for how monies of the deceased were spent might be that money was gifted is not sufficient to amount to plead a case of special circumstances. It is something that the executor is capable of dealing with albeit with court approval if that is felt to be appropriate."
7. The Plaintiff appealed against Master Thompson's decision and the matter came before the Royal Court (reported at Millard v Stone [2023] JRC 186), which dismissed the appeal. In so doing, Commissioner Binnington succinctly identified the claims being pursued by the Plaintiff:
"37. We note that these proceedings began principally as a claim for (i) the setting aside of wills of personalty and realty on the grounds of undue influence and/or incapacity; (ii) the setting aside of the sale of 3 Parcq du Rivage and/or the purchase of Les Quatre Saisons on the grounds that the power of attorney used for the transactions was obtained through coercion and/or undue influence and/or was void for incapacity; and (iii) that the First and/or the Second and/or the Third and/or the Fourth Defendants provide a full and complete inventory of the avances which they had received from the deceased during her lifetime. The claims in respect of the setting aside of the wills and contracts relating to real property are relatively straightforward and the nature of the evidence that would typically be regarded as relevant, in particular as to capacity and undue influence, is reasonably easy to identify. Essentially the rival claimants would conduct the litigation and the executor's function would be limited to identifying the estate assets and in due course distributing them once the beneficiaries and their entitlement had been identified. Given the claim for rapport a la masse it would be necessary for the executor to identify the relevant avances and the consequent sums that should be taken into account in determining the distributions to the beneficiaries."
8. He went on to note that:
"59...The action without the additional claims for an account ought to be capable of being brought to trial without further delay. If an independent executor is appointed, they will be best placed to take an objective view as to what further matters need to be investigated in the course of identifying estate assets and pursuing such claims as they deem necessary."
9. The proceedings came back before me in February 2024 when the parties were ordered to use reasonable endeavours to procure the appointment of Advocate Blakeley as an independent executor, and I gave further administrative directions.
10. By July 2024, Advocate Blakeley had been appointed as executor and was beginning the task of getting to grips with the estate. That process is still on going, and in particular, there are a number of third parties who have failed to provide him with all the material he has requested. That said, he has managed recently to file an affidavit of discovery identifying what he does, and does not hold. He has not yet formulated a definitive view as to what claims he might, or might not, wish to pursue. However, in the course of submissions, he indicated that as executor, he was interested in many of the queries raised by the Plaintiff.
11. Against that limited background, I now turn to the specific summonses.
12. In August 2024, Advocate Sinel for the Plaintiff provided the parties with a Schedule of Defects and Deficiencies relating to the discovery provided. It contains 91 separate complaints. That Schedule has been answered by the advocates for the First to Third Defendants, albeit that it does not appear that any further documents have been produced.
13. The Schedule of Defects and Deficiencies was provided at a stage when Advocate Blakeley was still familiarising himself with the estate. He provided a response to the Schedule and, subsequently on 4 December 2024, swore his affidavit of discovery.
14. As a result of the parties' responses to the Schedule, some of the complaints made are no longer pursued by the Plaintiff. I have addressed all of the individual complaints in a schedule provided to the parties, but which for the avoidance of doubt, does not form part of this judgment.
15. The complaints made by the Plaintiff about the discovery provided by the Defendants are many and varied. They essentially fall within two categories:
(i) procedural, in that they allege the First to Third Defendants have failed to comply with the relevant Practice Directions in terms of the advocate's endorsement and/or electronic discovery (complaints 79, 80, 82, 83, 84, 85, 86, and 89) and/or there are questions about their discovery that remain unanswered (complaints 77, 78, and 81);
(ii) qualitative, in that specific documents which the Plaintiff might reasonably have expected to exist and to have been disclosed, have not been disclosed. These relate to:
(a) the engagement of the First to Third Defendants with the Deceased and/or her assets (complaints 1, 2, 3, 4, 5, 6, 7, 8, 9, 22, 35, 39, 40, 41, 59, 61, and 62);
(b) the Third Defendant's divorce, bank accounts, borrowings, and his previous law firm (complaints 29, 30, 31, 32, 36, 42, 43, 44, 47, 48, 49, 50, 51, 56, 60, 87, 88, 90, and 91);
(c) documents which should clearly be within the Executor's control, including in relation to Quvib (complaints 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 23, 24, 25, 26, 27, 28, 33, 34, 37, 45, 46, 52, 53, 54, 55, 57, 58, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, and 74); and
(d) minor miscellaneous complaints (complaints 38, 75 and 76).
16. In response to these complaints, the First to Third Defendants submit that, amongst other things, these requests for discovery "are oppressive and vexatious and designed to run up disproportionate costs and to delay the orderly conduct of this litigation." These submissions echo the comments of Master Thompson when he referred to "internecine warfare" and are possibly reflected in the sheer number of affidavits sworn by the parties in a case that has yet to pass beyond discovery:
(i) on behalf of the Plaintiff, affidavits sworn on 26 November 2021, 1 October 2021, 11 February 2022, 26 July 2022, 4 April 2023, 2 May 2024 and 21 November 2024;
(ii) on behalf of the First and Second Defendants, affidavits sworn on 17 September 2021, 24 December 2021, and 14 February 2022;
(iii) by the Third Defendant, on 17 September 2021, 31 December 2021, 4 January 2022, 11 February 2022, 12 April 2022, 1 August 2022, and 31 March 2023 and all of which are entitled "Affidavit of Discovery".
17. In order to provide a little more context for my decision, I set out below examples of each category of complaints.
18. Having previously made an order for limited discovery, Master Thompson made an order for general discovery in January 2022. At the very least, any affidavits filed in relation to that order should have complied with the terms of Practice Direction 17/07 and in particular, should have contained:
"20...a written endorsement from the advocate with overall responsibility for either the case or for the discovery process, that the advocate concerned is satisfied that his or her client's discovery obligations have been met."
19. Notwithstanding that she complains about the omission of this endorsement from a number of the affidavits sworn by the First to Third Defendants, the Plaintiff's affidavit of 11 February 2022 does not contain any such endorsement.
20. The First and Second Defendants' affidavit of 14 February 2022 contains the requisite endorsement, as does that sworn by the Third Defendant on 11 February 2022. However, in an affidavit dated 12 April 2022 the Third Defendant disclosed further documents which had apparently been overlooked. That affidavit did not contain any endorsement. In my judgment, it should have done. As I held in Rassmal Investments LLC v Mubarak Abdullah Al Suwaiket [2024] JRC 104:
"17.(v) if a party identifies relevant documents after having sworn an affidavit of discovery, they must meet the obligations set out in Practice Direction RC 17/07 and swear a supplemental list, verified by affidavit and containing the requisite endorsement. That affidavit must set out in sufficient detail why the Court, and the other parties, can now place confidence in their assertions that discovery is complete given their previous deficient assertions."
21. Further, the Amended Order of Justice was filed in February 2024, with consequential amended pleadings being filed subsequently. Notwithstanding that new allegations were added, no further affidavits of discovery have been sworn or exchanged between the parties and nor have their advocates confirmed that they have complied with their, possibly enlarged, discovery obligations. Whilst I accept that I have not hitherto made any specific order for updated general discovery, in the context of this particular case, I think that is an omission which should be rectified. That is particularly so given that none of the advocates now representing the Plaintiff or the First to Third Defendants has provided the requisite endorsement confirming that as a result of all of the affidavits filed, and the answers that the advocates have provided to the Schedule of Defects and Deficiencies, each of their respective parties has met their discovery obligations.
22. Electronic documents also feature in this case, albeit that the parties are individuals. All parties appear to have embarked upon the task unilaterally, without engaging with the others, contrary to the provisions of Practice Direction RC 17/08. They have also conducted the searches themselves and as I held in Rassmal:
"41...insofar as the custodians themselves were responsible for collecting their own data and/or responsive documents, I do not think that such an approach is in accordance with best practice. In my judgment, unless impracticable:...
(ii) if it is to be suggested that data custodians might collect and/or search their own records, the issue of document collection and searching should be raised with the other parties in accordance with the Practice Direction, as soon as contemplated, and to the extent that an approach cannot be agreed, it should be referred to the Court."
23. Insofar as the First and Second Defendant are concerned, there are obvious issues on the face of their affidavit of 14 February 2022 relating to the electronic discovery exercise they carried out. For example:
(i) The First and Second Defendant depose that:
"8. In relation to electronic documents, we were initially unable to locate relevant e-mails but that may be down to our own technical competence and understanding of the relevant issues raised in the case (i.e. what we did locate did not seem to be relevant). Accordingly...we have enlisted the assistance of our son... an IT professional with over 20 years' experience in IT support and consultancy (with specific experience of data recovery and forensic investigation) and he has been able to access accounts belonging to the Deceased. He has also been able to locate all our historic emails. In order to try and reduce the substantial costs of discovery, we then had the support of our daughter-in-law...a qualified English Solicitor of over 10 years' call...[who] has produced a document which sets out the methodology that she used to locate relevant documents which is at ATS2".
(ii) ATS2 only provides an explanation of the email search parameters applied by the First and Second Defendants' daughter-in-law; it does not identify their devices, or address any electronic documents other than emails or electronic recordings of voice calls. Nor is there any explanation of the process carried out by the First and Second Defendants' son.
(iii) the date ranges for the searches are expressed as:
""All sub-folders" "Date Sent" "After" 30/06/2016 "Before" 31/12/2016
"All sub-folders" "Date Sent" "After" 01/01/2017 "Before" 30/06/2017
"All sub-folders" "Date Sent" "After" 30/06/2017 "Before" 31/12/2017..."
(iv) on a logical reading, those search terms would appear to exclude emails sent on 31 December 2016, 1 January 2017, and/or 30 June 2017, yet the affidavit contains no explanation as to how these search terms work or why these dates might have been excluded.
24. The Third Defendant has provided a number of affidavits setting out details of the electronic searches carried out and the systems to which those searches have been applied. Whilst I accept that he carried out these searches himself, did so from 2007 and did not liaise with the Plaintiff before embarking on the electronic discovery exercise, contrary to Practice Direction RC 17/08, he has provided a wealth of detail through his affidavits as to the process he followed.
25. Further, the Plaintiff herself is not immune to criticism in relation to electronic disclosure. On the basis of her affidavit sworn on 1 October 2021, she has an email account, in respect of which she has disclosed one relevant email, albeit that for reasons unexplained it seemingly only exists in hard copy format. There is no further record in any subsequent affidavit of the extent of her electronic devices and/or records, nor as to the searches that she might, or might not, have carried out.
26. As set out above, the First and Second Defendants' affidavit of discovery contains the suggestion that because of their lack of technical competence, they had to enlist assistance from their son. Advocate Sinel submits with some force that:
(i) the Second Defendant previously ran a computer business; his protestations about technical incompetence are incredible;
(ii) particularly given that in an email dated 22 March 2019 from the Second Defendant to the Third Defendant, referencing the Deceased, the Second Defendant stated that:
"I am religiously keeping her and our books on expenditure and slowly working my way through years of bank statements which quite frankly are a mess. On top of that as I said some years do not exist at all .... and it seems that she has never been fond of keeping receipts! Every document I handle is given a unique identity number and recorded on my computer systems which are backed up in 3 different ways. Also the main system is not, never has and never will be connected to the internet in any way shape or form. I also now 100% agree that bank accounts should not online ..... the internet has failed, it is now no more than a cesspit f#ckbook losers." (Emphasis Added)
(iii) quite apart from the technical expertise seemingly expressed in that email, it suggests that the Deceased's records, going back a number of years, were in the possession of the Second Defendant; were individually referenced by him; and in addition to any original electronic copy of the record, were backed up in 3 other ways;
(iv) none of the Deceased's records have been disclosed by the First and Second Defendants;
(v) the First and Second Defendants depose that have had, but do not have now, in their possession, custody or power, the documents relating to the matters in question in this action enumerated in Schedule 2 to the List of Documents. Schedule 2 does not refer to the Deceased's records and solely references to:
"Further, the originals of those documents in the said Schedule 1, Part I referred to as copy documents which are copies of documents held in the possession of the First and Second Defendants."
27. There is an inconsistency between the email from the Second Defendant and the discovery provided by him. Whilst this may be a matter for cross-examination at trial, in my judgment, an explanation could, and should, have been provided in their affidavit if discovery. As I held in Rassmal:
"an affidavit of discovery should inform both the receiving party and the Court, with a reasonable degree of particularity, about the exercise that has been undertaken, the scrutiny that has been applied, any issues identified, the quality control process, the confidence that can be attached to the output and provide sufficient information not only to address likely queries, but also to allow those queries to be articulated."
28. The affidavits filed by the First and Second Defendants do not mention that they might have held any of the Deceased's records. In response to this criticism, the First and Second Defendants submit, somewhat cryptically, that "the email of 22 March 2019 has been disclosed".
29. In relation to the Third Defendant, the Plaintiff submits that questions arise as to his disclosure. For example:
(i) at paragraph 9 of the Third Defendant's First Affidavit sworn on 17 September 2021, he states that:
"I have in my possession certain papers relating to the estate of the late Mrs Annie May Bosworth, my maternal grandmother, being in the main the company books and statutory records of Quvib Limited ("Quvib") dating back to 10 April 1964. The late Mrs Bosworth gave me the company books and statutory records in I believe 2014 when she was decluttering her home. At first, the late Mrs Bosworth wished for me to dispose of the papers but I stressed that Quvib was obliged to keep them. She, therefore, asked me to retain them. I was appointed as a director on 16 July 2004."
(ii) yet despite having had the Quvib papers in his possession when he swore the affidavit:
(a) no Quvib documents were included in his list of documents;
(b) in his affidavit sworn on 12 April 2022, he deposed that:
"It was not an oversight in not making these inquiries sooner. From my recollection, I did not expect Quvib to have any financial statements and records prior to those generated during the administration of the estate of the late Mrs Anne May Bosworth as Quvib had had no income for more than ten years and, therefore, did not realise that Mr Behan had these documents." (Emphasis Added)
30. Again, in my judgment, this is a matter which could and should have been explained properly in an affidavit of discovery.
31. These encompass a number of disparate complaints, going back a significant period of time. For example:
(i) Complaint 1 seeks the "The trust deed and trust accounts relating to the Terrace Realty Trust":
(a) The Terrace Realty Trust is explained by the Plaintiff in an affidavit sworn on 4 April 2023 in which she stated that:
"In or about 1975, Philip Bosworth became aware that the Second Defendant was falsifying the mileage on cars destined for the garage in Blackheath. Philip Bosworth knew this would adversely affect his reputation and that of Qu-vib Limited and its garage businesses. He therefore arranged for all the cars to be collected from the Blackheath garage, to be stored and thereafter sold elsewhere; and he refused to have anything more to do with the Second Defendant. With financial assistance from Michael Millard, the First and Second Defendants purchased a house in Devon in the name of the Terrace Realty Trust, which they initially ran as a bed and breakfast although it was not a commercial success and ultimately failed."
(b) Advocate Sinel submits that in a case such as this which concerns the exercise of undue influence over the Deceased and/or avances received from the Deceased over the course of her lifetime, the First and Second Defendants must give disclosure of, and account for, all of their financial dealings insofar as they may evidence opportunity and/or inclination and/or motive to extract monies from the Deceased.
(c) On Advocate Sinel's analysis, the success or otherwise of a bed and breakfast business nearly 50 years ago is relevant, either directly or on the basis of a chain of enquiry and accordingly through complaint 2, he seeks "accounts for the bed and breakfast business run by the First and Second Defendants from the house in Devon."
(ii) Complaint 4 seeks "Documents relating to the purchase of the House in France in the name of the Third Defendant":
(a) The Third Defendant has responded to this complaint stating that:
"French House purchased by D3 - this property was purchased by D3 and his then wife in 2008. It was funded in part by moneys belonging to D3 generated by his own earnings, investments, savings, and in part by a mortgage provided by Credit Lyonnais. This property, its ownership, and the way in which it was funded has nothing to do with the estate of the Deceased and has no relevance to any issue in the litigation."
(b) the Plaintiff pursues these documents on the basis that this is relevant to the Third Defendant's financial means and any means of support from the Deceased.
(iii) Complaint 40 seeks "All and any computer records concerning the creation of the 2016 Letter (as defined in paragraph 25A of the Amended Order of Justice)." That letter, which is alleged by the Plaintiff to have been procured by undue influence of the First and/or Second and/or Third Defendants is a printed letter, signed by the Deceased, which waives loans made to the Third Defendant and Dean (the Plaintiff's son):
(a) the First and Second Defendants have disclosed a jpeg image from their electronic records; the Third Defendant has said that he did not create it and does not have any computer records relating to it;
(b) Advocate Sinel submits that in 2016, the Deceased was a 91 year old lady who did not use a computer, so who created this letter and where is the original version that was subsequently printed and signed?
(iv) Complaint 59 seeks "All and any correspondence and/or communications (whether by letter, emails, texts or otherwise) between the First and/or Second and/or Third and/or Fourth Defendants regarding the Deceased":
(a) the Plaintiff submits that no such correspondence has been disclosed;
(b) although she does not expressly refer to missing correspondence in her affidavit sworn in support of this application, the thrust of that affidavit is to the effect that she cannot have any confidence in relation to the discovery exercise undertaken by the Defendants;
(c) the Defendants submit that this complaint concerns amendments that were not allowed by Master Thompson (and which decision was upheld by the Royal Court).
32. There are a significant number of complaints about the Third Defendant's discovery which appear to be focussed more on the Third Defendant personally than the issues in the case. They include, for example:
(i) Complaint 29 which seeks "Financial disclosure given by the Third Defendant in the divorce proceedings from [Mrs] Stone."
(ii) Complaint 31 which seeks "The Third Defendant's bank accounts from 1 January 2009 onwards."
(iii) Complaint 36 which seeks "The accounts of Lexstone Lawyers from 1 December 2015 onwards."
33. A large number of the complaints relate to documents which, in my judgment, should be available to, or obtainable by, the Executor. It is clear from Advocate Blakeley's affidavit that in providing discovery, he has called upon those who have an obligation to provide him with documents and has identified where he is yet to receive such documents.
34. These miscellaneous complaints relate to the individual defendants and/or a company whose shares were alleged purchased by or on behalf of the Deceased.
(i) Complaint 38 seeks "First and Second defendants' telephone records from September 2016 to the Deceased's death on 4 March 2020". The response to this from the First and Second Defendants is that "this is a disproportionate fishing expedition. If there is a telephone number or numbers and a specific time period that can be shown to be relevant to matters in issue, please identify them and the request will be considered further".
(ii) Complaints 75 and 76 concern a company called Cloris Limited in respect of which the Third Defendant states that the relevant documents have been disclosed.
35. The test to be applied in relation to specific discovery was set out by Master Thompson in Macleod v Coop [2024] JRC 109 where he adopted the following summary of the applicable principles, albeit noting that in exceptional circumstances, an affidavit might not be required:
"a. The existence of an affidavit of discovery in proper form ought to be conclusive as to whether or not a party has complied with its discovery obligations.
b. That presumption can only be displaced by the production of evidence, by sworn affidavit, which establishes a prima facie case that the party has documents which have not been disclosed but that those documents will be relevant to a matter in issue.
c. Even where an applicant is able to establish the existence and relevance of documents not discovered the Court must be satisfied that making an order for specific discovery is necessary for the just disposal of the action."
36. As Master Thompson's principles illustrate, if successful, an application for specific discovery addresses specific documents, which exist and are relevant to the issues, but that have not been disclosed. Complaints that a party has not complied with Practice Directions RC 17/07 and/or 17/08 in terms of an advocate's endorsement and/or engagement in relation to electronic documents, are not matters for specific discovery.
37. In my judgment, if the complaints about compliance with the Practice Directions are ignored, the key to determining the Plaintiff's application is within the final parts of Master Thompson's test in Macleod v Coop, namely the questions of relevance and necessity. Master Thompson's view of this litigation (at paragraphs 5 and 6 above), echoed by Commissioner Binnington (at paragraph 7 above), was that:
(i) the claims that can be brought by the Plaintiff are to set aside wills of personalty and realty on the grounds of undue influence and/or incapacity and to set aside of the sale of 3 Parcq du Rivage and/or the purchase of Les Quatre Saisons on the grounds that the power of attorney used for the transactions was obtained through coercion and/or undue influence and/or was void for incapacity;
(ii) these are the claims set out in the Prayer to the Amended Order of Justice in the following terms:
"(a) set aside the 2015 Will of Personalty, the 2017 Will of Realty and the 2017 Will of Personalty and the resulting Acts of the Royal Court;
(b) declare that the 2007 Will of Realty and the 2007 Will of Personalty are effective in place of the 2015 Will of Personalty, the 2017 Will of Realty and the 2017 Will of Personalty respectively..."
(iii) the claims in relation to avances and rapport are but one aspect of the Plaintiff's claim for an account, particularised in paragraph (c) of the Prayer to the Amended Order of Justice in the following terms:
"(c) order the First and/or the Second and/or the Third and/or the Fourth Defendants to provide a full and complete inventory of the avances de succession which they have received by the First and/or Second and/or Third Defendant from the Deceased during her lifetime and actioning the First and/or the Second and/or the Third Defendant to rapporter à la masse all gifts made to him and or her or for his and/or her benefit both directly and indirectly during the lifetime of the Deceased which constitute avancements de sucession and after the Deceased's death;"
(iv) in the first instance, it is "for the Executor to review these claims [for an account] from a neutral standpoint and decide whether or not to pursue them" (Master Thompson at paragraph 5 above) and "[i]f the responses of the defendants to the claims for an account are that what has been paid over or spent were gifts, that can be dealt with by the executor..." (Master Thompson at paragraph 6 above);
(v) the Executor is still in the process of investigating what happened to the Deceased's assets and formulating a view as to what monies, if any, he might wish to pursue further;
(vi) for the purposes of these proceedings, the Executor, not the Plaintiff, should take the lead in relation to any claims for an account and has not yet advanced any such claims or sought any assistance from the Court.
38. Accordingly:
(i) discovery in relation to avances and/or rapport is not relevant to the claims that the Plaintiff can properly bring at this stage and nor is it necessary for the just disposal of the Plaintiff's current claims;
(ii) any complaints about discovery relating to avances and/or rapport would, in the first instance, be for the Executor to pursue, if so minded, and he has not yet done so;
(iii) I decline to order specific discovery on the Plaintiff's application of any matters relating to avances and/or rapport.
39. In my judgment, relevance is referable to the relief sought. If the Plaintiff's case is that the 2007 Wills were valid, logic would dictate that discovery would not need to cover the period much before 2006 (12 months before the Wills) and in fact, could start much closer to 2017. To the extent that any material about which complaint is made pre-dates 2006, in my judgment, it would require cogent reasoning if it be submitted that it is relevant to the issues relating to the Plaintiff's claims. No such reasoning has been provided in the Plaintiff's affidavit in support of this application.
40. Whilst I accept that the Plaintiff's affidavit was sworn before the Executor swore his affidavit of discovery, it is unusual in that it singularly fails to establish, or even to assert, a prima facie case that any of the First to Third Defendants has specific documents which have not been disclosed:
(i) the highest the affidavit goes is to assert that documents which would have allowed a forensic reconstruction of the Deceased's financial affairs and shown monies paid to and/or received from others, have not been produced by the Third Defendant (at paragraphs 34 to 36 of the Plaintiff's affidavit sworn on 21 November 2024);
(ii) indeed, rather than focussing on individual documents or categories of documents that might be said to exist and to be relevant, it focusses of the discovery exercise as a whole. Its theme is that whatever the Defendants might have done to discharge their discovery obligations, it cannot be relied upon, and it endorses her Advocate's Skeleton Argument which in turn submits that:
"43. Accordingly, the defects and deficiencies in the discovery process by Annette, Tim, and Marcus are such that Dawn, nor the Court, can be satisfied that discovery obligations have been properly discharged and the only way to rectify this is for more clarity to be provided as to search parameters used and/or for the searches to be revisited. In short, do it properly in accordance with the Rules and Practice Directions and put in the other documentation which is so clearly missing."
41. In my judgment, the Schedule of Defects and Deficiencies can be filtered to exclude:
(i) the complaints that are no longer pursued;
(ii) the procedural complaints;
(iii) all complaints relating to avances and/or rapport; and
(iv) complaints about documents that pre-date 2006 and which are not referable to the relief properly sought by the Plaintiff.
42. That filtering leaves the following complaints extant:
Complaint Number |
Item |
Relevant Response from Defendants |
21 |
The file kept by Backhurst, Dorey and Crane relating to the July 2007 Wills of Realty and Personalty. |
The Executor has made relevant enquiries of law firm BCR which firm he believe has historic files from firm Backhurst, Dorey and Crane. Advocate Benest at BCR has confirmed he has located relevant documents. The Executor is still waiting to receive documents from BCR. |
33 |
Crane Law's file relating to the 2015 Will of Personalty. |
The Executor has made relevant enquiries of law firm BCR which firm he believes has historic files from firm Crane Law. Advocate Benest at BCR has confirmed he has located relevant documents. The Executor is still waiting to receive documents from BCR |
34 |
All and any correspondence and/or communications (whether by letter, emails, texts or otherwise) from or to the Deceased, the Defendants, Advocate Crane, the Plaintiff and/or any third party regarding the 2015 Will of Personalty. |
The Executor has made relevant enquiries of law firm BCR which firm he believes has historic files from firm Crane Law. Advocate Benest at BCR has confirmed he has located relevant documents. The Executor is still waiting to receive documents from BCR |
35 |
All documents in the Defendants' possession or control relating the Deceased's 90th birthday party and the Deceased's trip to France on or shortly before 4 March 2015. |
The First to Third Defendants state that they have disclosed all documents in their possession, custody or control in relation to this request |
37 |
Telephone records for the Deceased's mobile phone. |
The Executor has made enquiries of Jersey Telcom which has confirmed the Deceased did not have a contract for a mobile phone. |
39 |
Ferry records relating to any trips taken by the First and/or Second and/or Third Defendants and/or the Deceased to or from Jersey between September 2016 and the Deceased's death on 4 March 2020. |
The First and Second Defendant state that they have disclosed anything they have. The Third Defendant states that these documents are not relevant to any issue within the litigation. |
40 |
All and any computer records concerning the creation of the 2016 Letter (as defined in paragraph 25A of the Amended Order of Justice). |
The First to Third Defendants state that they have disclosed all documents in their possession, custody or control in relation to this request. |
41 |
All and any correspondence and/or communications (whether by letter, emails, texts or otherwise) from or to the Deceased, the Defendants and/or any third party regarding the 2016 Letter |
The First to Third Defendants state that they do not have any such documents. |
42 |
Copies of the first drafts of the new Will of Personalty, Will of Realty and the General Power of Attorney prepared by the Third Defendant. |
The Third Defendant states that these items have already been disclosed |
43 |
All computer records held by the Third Defendant and/or any third party relating to the Third Defendant's drafting of the new Will of Personalty, Will of Realty and the General Power of Attorney. |
The Third Defendant states that these items have already been disclosed. |
44 |
All and any correspondence and/or communications (whether by letter, emails, texts or otherwise) from or to the Third Defendant and Advocate Timothy Hanson regarding a new Will of Personalty, Will of Realty and/or General Power of Attorney by the Deceased. |
The Third Defendant states that these items have already been disclosed. |
45 |
Advocate Young's file relating to the 2017 Will of Personalty, the 2017 Will of Realty and the Power of Attorney. |
The Executor has disclosed relevant documents at items 49-54, 57, 58, 62 and 63 of his Affidavit of Discovery |
46 |
All and any correspondence and/or communications (whether by letter, emails, texts or otherwise) from or to the Third Defendant and Advocate Young regarding the new Will of Personalty, Will of Realty and/or the Power of Attorney. |
The Third Defendant states that these items have already been disclosed. |
57 |
Telephone records for the Deceased's telephone number 811993. |
The Executor has made enquiries of Jersey Telecom and been informed that no telephone data is available for any of the Deceased's telephone accounts. |
58 |
Telephone records for the Deceased's telephone number 747633. |
The Executor has made enquiries of Jersey Telecom and been informed that no telephone data is available for any of the Deceased's telephone accounts. |
43. Insofar as the relevant responses set out in the Schedule of Defects and Deficiencies state that a party has disclosed the responsive material in their custody, power or possession (complaints 35, 40, 42, 43, 44, 45, and 46), or that a party does not have any responsive material in their custody, power or possession (complaints 37, 41, 57, and 58), as noted above, there is nothing in the Plaintiff's affidavit to gainsay such assertions. Accordingly, the second limb of the test set out by Master Thompson in Macleod v Coop is not satisfied and I decline to make any orders in relation thereto.
44. Complaints 21, 33, and 34, relate to material held by third parties, in respect of which the Executor states that he has made enquiries, believes that the material exists and is waiting for that third party to produce the material. Accordingly, that material has not yet been disclosed in these proceedings; it should have been:
(i) I therefore make an order for specific discovery against the Executor requiring him to disclose those documents to the extent that they are or might be relevant to any issues in the proceedings, and to do so by 31 January 2025;
(ii) I note however that the Executor is dependent on a third party to supply him with the documents. RCR 6/20(7A) is a power exercisable by the Master and provides that
"(7A) The Court shall have power to issue a summons requiring a person to appear in any proceedings before the Court to give evidence or to produce documents or both."
(iii) whilst it should not be necessary for the Court to have to issue summonses against the third party referred to in those specific complaints, in the event that the material requested has not been provided to the Executor by noon on 17 January 2025, I give permission for him to apply, at short notice and ex parte, for a summons under RCR 6/20(7A). I would further note that in the event he does so, the Court reserves the right to make such orders for costs as it thinks fit, including against the third party;
(iv) to the extent it may be necessary or desirable, I give permission for the Executor to share the relevant paragraphs of this judgment with the relevant third party.
45. That analysis leaves only complaint 39 unresolved as against the Third Defendant. The Plaintiff submits that this is "relevant as for example, there is a dispute about when and where the Deceased was at certain times". Whilst it might appear unlikely that her movements would be relevant to her 2017 Wills and/or the purchase of Les Quatre Saisons, the pleadings suggest differently. For example, at paragraph 57 below, I have set out the Plaintiff's claim in relation to the 2017 Wills; the Third Defendant's Answer to that is:
"24. Paragraph 26 of the Order of Justice is denied:
(a) Ferry records prove that the Deceased returned to Jersey on the 7th June 2017.
(b) There is no truth whatsoever in the assertion that the Deceased had a stroke whilst in France, on any date, and then endured a lengthy car journey back to Jersey without proper medical care and attention.
(c) Medical records in the possession of the Plaintiff confirm that the Deceased woke up in Jersey on the morning of the 2nd July 2017 with some disturbed vision on her right side. This was not obviously a stroke type event. She was seen at a 'rapid eye clinic' on 7th July 2017 and then had a CT scan on 14th July 2017. It was the CT scan that confirmed that the problems with the Deceased's vision had been caused by a stroke. On 17 October 2017, the Consultant Physician and Neurologist described the Deceased as "fabulously active". There is no recorded evidence of mental capacity issues or other concerns at this time..."
46. In my judgment, having been pleaded, this issue is clearly relevant and should be the subject of discovery. In the absence of any evidence that relevant documents exist in the possession of the Third Defendant, I cannot make an order for specific discovery. However, having held that they are relevant to any issues that have been pleaded, it will be a matter for the Third Defendant and his advocate to address in any further affidavit of discovery.
47. According, I dismiss the Plaintiff's application save in relation to complaints 21, 33, and 34.
48. This aspect of the Plaintiff's summons did not feature either in her Advocate's Skeleton Argument or in his submissions. Nor is there any reference to it in the Plaintiff's affidavit sworn in support of the summons.
49. As with the application for specific discovery, this request is relevant to avances and/or rapport which are matters in the first instance for the Executor, not for the Plaintiff. Accordingly, on the basis that this is an application made by the Plaintiff and not the Executor, I decline to so order.
50. In Financial Technology Ventures v ETFS Capital Limited [2021] JCA 176, Crow JA set out the function of pleadings in the following terms:
"42. Turning more generally to the function of pleadings, it is stating the obvious to say that, as between the parties inter se, they are intended to identify the issues in dispute, so that each side knows what case it has to meet and what evidence it needs to adduce at trial. As between the parties (on the one hand) and the court (on the other), the function of pleadings is to provide the court with an appropriate tool for understanding the case it has to decide and for managing the proceedings in the run-up to trial, and during the trial process. In order properly to fulfil those functions, it is critically important that pleadings should always avoid (at one extreme) including an unnecessary torrent of detail which may obscure the essential issues, and (at the other extreme) pleading the case in such exiguous terms that the court and the other side are uncertain as to the basis on which the case is being put: Three Rivers DC v. Govemor & Company of the Bank of England [2003] 2 AC 1, at 49 - 51.
43. That explains the governing provisions of rule 6/8 of the Royal Court Rules, 2004. Paragraphs (1) and (6) provide as follows (emphasis added): "(1) Subject to the provisions of this Rule, every pleading must contain, and contain only, a statement in summary form of the material facts on which the party pleading relies for that party's claim or defence, as the case may be, but not the evidence by which those facts are to be proved, and the statement must be as brief as the nature of the case admits, (6) A party may in pleadings raise any point of law."
44. As the underlining indicates, we consider it important to emphasise that the Rules require that (i) facts are pleaded, not evidence; (ii) only material facts are pleaded, not all incidental facts; and (iii) points of law may be pleaded, but do not always have to be.
45. It is also important to emphasise that rule 6/15 confers a power on the court, either of its own motion or on application by a party, to make an order requiring a party to clarify any matter in dispute in the proceedings or give additional information in relation to any such matter. Accordingly, if in any case a litigant genuinely does not understand some part of the case against him, he can apply to the court for an order under rule 6/15 to clarify that matter. If he fails to do so (whether through inadvertence or as a result of a deliberate, tactical choice) and if the trial court subsequently bases its decision on a finding which can properly be said to have been raised on the pleadings, albeit not prominently or perfectly clearly, it may not lie in the litigant's mouth to say on appeal that he did not realise that was the case being put against him. Litigants should not be tempted to adopt Nelsonian blindness in the hope of being able to shut out inconvenient issues at trial. Conversely, we wish to say nothing to encourage Delphic pleading. Each side is expected to set out its case both clearly and succinctly in its pleading. If it is in any doubt about the other side's case, it is expected to seek clarification."
51. The principles applicable in relation to RCR 6/15 were set out by Master Thompson in Monteagle International v Grocery Market Research Limited [2020] JRC 244:
"15. The power to order a party to provide further information is set out in Rule 6/15(1) of the Royal Court Rules 2004, as amended, ("RCR") as follows: -
"6/15 Obtaining further information [54]
(1) The Court may at any time of its own motion or on application order a party to -
(a) Clarify any matter which is in dispute in the proceedings; or
(b) give additional information in relation to any such matter,
whether or not the matter is contained or referred to in a pleading."
16. This rule is supported by Practice Direction RC17/04. Paragraph 5 of that RC17/04 provides as follows:-
"5. The Request should be concise and should only relate to matters that are reasonably necessary and proportionate for a requesting party to prepare its own case, or to understand the case it has to meet."
52. In this case, the Third Defendant has raised limited requests for further information of the Amended Order of Justice, referenced to individual paragraphs of the Amended Order of Justice rather than to specific issues:
(i) the Third Defendant asks for particulars of the coercion and/or the undue influence referred to in:
(a) paragraph 23L which pleads:
"23L. THAT the Plaintiff contends that the 2015 Will of Personalty should be set aside on the ground that the Third Defendant coerced the Deceased into making it and/or exercised undue influence over the Deceased in persuading her to make the said Will and/or in influencing her as to the contents of the said Will."
(ii) paragraph 25B, which pleads:
"25B. THAT if and to the extent that it is necessary to do so the Plaintiff will aver that the 2016 Letter was procured by the undue influence of the First and/or Second and/or Third Defendants, in that: it was written at a time when the Deceased reposed trust and confidence in the First. Second and Third Defendants in relation to the management of her financial affairs, and/or when her age and infirmity rendered her vulnerable to undue influence..."
(iii) paragraph 28 of the Amended Order of Justice sets out extracts from the Deceased's medical records, untethered to any specific allegation and the Third Defendant requests:
"(i) Please provide full and precise information to explain in what way or ways it is alleged that the matters pleaded in this paragraph relate and/or are capable of being relevant to the issue of capacity in this case.
(ii) Please provide full and precise information, so that the same may fairly be understood, how the matters pleaded in this paragraph are linked to matters of causation in this case."
53. As to the issues of undue influence and coercion, in Toothill v HSBC [2008] JLR 77, Birt B held that:
"28-ƒThe law of undue influence in Jersey is similar to that of English law and we find that the principles underlying the decisions in O'Brien and Etridge are entirely consistent with those of Jersey law. Furthermore, there are strong policy grounds for thinking that the law in this jurisdiction should be the same as in England."
54. In Royal Bank of Scotland v Etridge (No.2) [2001] UKHL 44, Bingham LJ held that:
"13. Whether a transaction was brought about by the exercise of undue influence is a question of fact. Here, as elsewhere, the general principle is that he who asserts a wrong has been committed must prove it. The burden of proving an allegation of undue influence rests upon the person who claims to have been wronged. This is the general rule. The evidence required to discharge the burden of proof depends on the nature of the alleged undue influence, the personality of the parties, their relationship, the extent to which the transaction cannot readily be accounted for by the ordinary motives of ordinary persons in that relationship, and all the circumstances of the case."
55. Accordingly, a party alleging undue influence and/or coercion must set out full particulars of all material facts relied upon in order that the parties know how the claim is to be advanced and what evidence that they must adduce in response. In particular, it must be clear whether the party alleging undue influence is relying on an actual event or an evidential presumption. In my judgment, the Plaintiff's Amended Order of Justice does not identify whether she relies solely on an evidential presumption (as might be suggested by paragraph 25B) or whether she might be relying on specific incidents (as might be suggested by paragraph 23L). In my judgment, she should clearly set out her case and I direct that she answer the requests raised in relation to paragraphs 23L and 25B.
56. As to paragraph 28, it is unusual in that it is a recitation of extracts of the Deceased's medical records seemingly untethered to any allegation. However, as Master Thompson's held in Monteagle, the pleading needs to be read as a whole:
"22...in evaluating requests for information made of particular paragraphs, I consider that the court should not just analyse the particular paragraph but also the pleading as a whole to see whether the case is clear. This is because, while there may be ambiguity in a particular paragraph, that ambiguity may be answered or clarified in another paragraph of the pleading. When drafting requests for information, parties and their advisers should stand-back and focus on what it is they do not understand having regard to the pleading as a whole, not just a particular sentence or paragraph."
57. In the case of this Amended Order of Justice, paragraph 28 forms part of a series of paragraphs relating to what are alleged to be the circumstances surrounding the creation of the 2017 Wills:
"26. THAT on or about 2nd June 2017, whilst still staying with the First and Second Defendants in France, the Deceased suffered a stroke...Instead of taking the Deceased to the local hospital in France, which was a fifteen minute drive from the First and Second Plaintiffs' house, the First and Second Defendants put the Deceased in their car and drove her to St Malo, where they boarded a boat for Jersey...
27. THAT, instead of the First and Second Defendant's priority being to ensure that the Deceased received prompt medical attention, their preoccupation appeared to be with procuring the Deceased to make new Wills. They arrived in Jersey on or about 3rd July 2017. On or about the same day the Third Defendant drafted a new Will of Personalty, a new Will of Realty and a General Power of Attorney for the Deceased. Early in the morning on the next day, 4th July 2017, the Third Defendant wrote an email to Advocate Timothy Hanson asking him to represent the Deceased regarding the new Will of Immovable Property... By email sent later the same morning Advocate Hanson declined to act...
27A. Later that same morning on 4th July 2017 the Third Defendant wrote an email to Advocate Young asking him to deal with the new wills for the Deceased, which Advocate Young agreed to do, notwithstanding the issues which had been identified by Advocate Hanson...
28. THAT only the following day (7th July 2017) did the First and / or Second Defendants take the Deceased to Hospital for a CT scan in the Opthalmology Rapid Access Clinic. In a letter dated 17th July 2017 from Mr Anthony Spiteri, Consultant Opthalmic Surgeon at the General Hospital, to Dr Jessica Vaz, Associate Specialist in the Neurology Department of the General Hospital, Mr Spiteri noted that, on 7th July 2017, the Deceased " ... underwent a CT head which showed what looked like a relatively acute looking occipital lobe infarct"...
29. THAT the Plaintiff will aver that the Deceased did not need to and did not wish to make new Wills and that she was coerced into doing so by the First and / or Second and / or Third Defendants. Alternatively, the First and / or Second and / or Third Defendants unduly influenced the Deceased into making new Wills and / or as to the contents of the said Wills."
58. In my judgment, it is clear from reading these paragraphs of the Amended Order of Justice as a whole, what is being alleged. I therefore decline to require further information to be provided in relation to paragraph 28 of the Amended Order of Justice. As to whether any of those allegations can be proven is a wholly different issue.
59. In terms of the summonses, I direct that:
(i) the Plaintiff shall provide responses to the Third Defendant's Requests for Further Information in relation to paragraphs 23L and 25B by 17 January 2025;
(ii) the Executor shall give specific discovery of the documents referred to in complaints 21, 33, and 34 in the Schedule of Defects and Deficiencies by 31 January 2025.
60. Paragraphs 44A and B of the Amended Order of Justice filed by the Plaintiff are in square brackets and aver the Third Defendant acted in breach of his fiduciary obligations under the Power of Attorney (paragraph 44A) and that he breached the Law Society's Code of Conduct (paragraph 44B). These amendments were refused by Master Thompson, albeit that he noted that the majority of paragraph 44A, and all of paragraph 44B could be added in the event that the Plaintiff obtained leave from the Royal Court to pursue a derivative claim (at paragraphs 75 and 76 of his judgment reported at Millard v Stone [2022] JRC 262). Master Thompson's decision was upheld on appeal and no permission has been granted for the Plaintiff to pursue a derivative claim. It would therefore appear that these paragraphs have been included in error. I therefore direct that by 17 January 2025 a new version of the Amended Order of Justice be filed and provided to the parties, omitting paragraphs 44A and 44B, and noting the same in the heading to the pleading by reference to the Act of Court that will follow this judgment.
61. Notwithstanding that I have declined to order specific discovery of the majority of the documents about which complaint is made in the Schedule of Defects and Deficiencies, in my judgment, the issues relating to discovery are unlikely to go away:
(i) given the sheer number of affidavits, and the unilateral way in which the parties have carried out the process, discovery appears somewhat confused;
(ii) the Executor will inevitably wish to understand what has gone on and may wish to have answers and documents in relation to all or some of the complaints raised by Advocate Sinel;
(iii) as Master Thompson noted, there is a lack of trust between the parties and the numerous affidavits of discovery sworn by the Defendants seem to have exacerbated that, rather than lessened it;
(iv) moreover, whilst the affidavits of general discovery sworn by the First, Second and Third Defendants may have contained the requisite endorsements:
(a) none of the endorsements was given by the advocates now representing the parties and with responsibility for the conduct of the case now being advanced;
(b) additional affidavits have been sworn without the requisite endorsement and without explaining why the other parties can now have confidence in the exercise carried out;
(c) to the extent that they have been answered, queries about the parties' respective discovery have been addressed in correspondence rather than by affidavit; and
(d) the pleadings have been amended since those affidavits were provided and by my order, further particulars of the Plaintiff's claims will be provided in the near future.
62. In my judgment, now is an appropriate moment for the all the parties, and their Counsel, to take stock of the proceedings as currently pleaded (which includes all of the allegations even if they are for the Executor to pursue), of the discovery process that they and their clients have undertaken, of the discovery provided, and the answers given in correspondence to queries raised about their discovery. In accordance with the Overriding Objective, and RCR 6/17(1), I direct that all of the parties, save for the Executor, provide to the Court and the other parties a further updating affidavit of discovery by 31 January 2025:
(i) setting out such further matters, if any, as they think fit;
(ii) in the case of the First to Third Defendants, confirming the responses provided through their advocates to the Schedule of Defects and Deficiencies; and
(iii) containing an endorsement from their advocate in the terms of paragraph 20 of Practice Direction RC 17/07.
63. In my judgment, these proceedings must be progressed, and I propose giving directions as to:
(i) the exchange of statements from all witnesses of fact to be relied upon at trial, by 28 March 2025 (8 weeks after the date by when the Executor is to provide specific discovery and the other parties are to provide updated affidavits), and subject to any further order of the Court, such statements will be used as the evidence in chief at trial herein;
(ii) a simultaneous exchange of expert reports by 16 May 2025 (6 weeks after the exchange of witness statements);
(iii) a meeting of experts and joint reports by 13 June 2025 (4 weeks after the expert reports);
(iv) a further directions hearing before me, on or after 30 June 2025 with a view to fixing a date for trial and giving such further directions as may be required; and
(v) liberty to apply, in particular for the Executor, should he wish to vary the directions to facilitate the pursuit of claims by him.
64. Although I have set out indicative timescales in paragraph 63 above, I have done so without the benefit of submissions from the parties and the precise timings will be fixed at the hand down hearing when I will also address the issue of costs, if necessary.
Authorities
Millard v Stone [2022] JRC 023
Millard v Stone [2022] JRC 262
Millard v Stone [2023] JRC 186.
Rassmal Investments LLC v Mubarak Abdullah Al Suwaiket [2024] JRC 104.
Financial Technology Ventures v ETFS Capital Limited [2021] JCA 176.
Monteagle International v Grocery Market Research Limited [2020] JRC 244.