PT-2024-000315 - [2025] EWHC 3011 (Ch)

Resolving disputed issues of fact

The parties disagreed as to the correct approach to resolving disputed issues of fact in the context of a claim to remove or replace trustees.

The issue arose because the Claimants invited the court to resolve various disputes involving the evidence of witnesses of fact, where no order for cross-examination had been sought or made. To take two striking examples:

The first example involved a direct conflict of testimony between two witnesses, neither of whom had been cross-examined. The second example involved a request to find that a witness had acted dishonestly, without that allegation having been put to the witness in cross-examination.

In this context, I drew the parties’ attention to the decision of the Supreme Court in TUI UK Ltd v Griffiths [2023] UKSC 48. In that case, the court was concerned with the issue whether the uncontroverted evidence of an expert witness could be rejected as inadequately reasoned when it had not been challenged in cross-examination. Giving the court’s judgment, Lord Hodge referred (at paragraphs [42] – [44] and [70]) to the “longstanding rule of general application”, often referred to in practice as “the rule in Browne v Dunn”, and applicable to both witnesses as to fact and expert witnesses, that “a party is required to challenge by cross-examination the evidence of any witness of the opposing party on a material point which he or she wishes to submit to the court should not be accepted.” That rule, which derives from the need to ensure the fairness of the trial, is not confined to challenges to the honesty of a witness or analogous challenges (e.g. allegations of bad faith, or aspersions against a witness’s character), but is of general application, albeit subject to certain qualifications and exceptions (some of which are addressed by Lord Hodge at paragraphs [61] – [69] of his judgment in the context of expert witnesses).

Mr Burton submitted that the court could nevertheless resolve disputes involving the evidence of witnesses of fact without the need for cross-examination (although ultimately he did not invite the court to make any finding that Paddy had “lied” in the manner originally alleged). He submitted that:

By contrast, Mr Learmonth KC submitted that the principles in TUI apply with equal force to the resolution of disputes of fact in the context of a Part 8 claim, and that the correct approach is that of Master Brightwell in Seymour, Earl of Yarmouth v Ragley, at paragraph [154], namely that in circumstances in which no party elects to seek permission to cross-examine the witnesses who file witness statements, the court’s assessment will not involve a resolution of disputed evidence between witnesses of fact based solely upon their oral testimony; rather, the claim will be determined by considering the witness evidence in the context of the contemporaneous documents.

As to the dicta of the Chief Master in Long v Rodman and Schumacher v Clarke referred to above, Mr Learmonth KC submitted that they were incorrect in their approach to disputed issues of fact. He submitted that it is incorrect to say that a “good arguable case” that trustees have engaged in misconduct or a breach of duty is sufficient to warrant their removal from office. His position was that, in seeking the removal or replacement of trustees, the burden of proof rests on the claimant, and that the court should not exercise its jurisdiction based simply on a “good arguable case” of misconduct or breach of duty, but only on the basis of proven allegations (if any).

Two separate but connected questions emerge from these submissions, which for clarity ought to be posed and answered separately:

As to the first question, in my judgment the principles set out by the Supreme Court in TUI are of general application in civil litigation, and apply as much to claims to remove and replace trustees as to any other dispute. The result is that, as a general rule, in the context of a claim to remove or replace trustees the court will not resolve disputes between witnesses of fact based solely on their oral testimony arising in circumstances in which neither witness has been cross-examined (although it may be possible to resolve such disputes by reference to contemporaneous documentary evidence). Still less will the court find that a witness of fact has acted dishonestly if that witness has not had the allegation fairly put to them in cross-examination.

As to the second question, the Chief Master’s statements in Long v Rodman (that the court’s jurisdiction to remove and replace trustees is exercised in a “pragmatic way”) and in Schumacher v Clarke (that the court’s jurisdiction is not dependent on making findings of wrongdoing against the trustees, and that, if the claimant makes out a good arguable case of misconduct, that may well be sufficient to engage the court’s jurisdiction to remove or replace the trustees) are well-established and have been applied in subsequent authority, most recently by HHJ Paul Matthews, sitting as a Judge of the High Court, in Fernandez v Fernandez [2025] EWHC 2373 (Ch) (which decision was handed down following the final hearing in this case, and in respect of which therefore the parties provided short written submissions following the hearing). In my judgment, they are also correct in principle.

The Chief Master’s statements are correct in principle because the jurisdiction to remove and replace trustees may be exercised without any breach of duty or misconduct on the part of the trustees being established. It follows that, on the facts of a particular case, the court might well think it right to remove or replace trustees on the basis that there is a good arguable case of some misconduct on their part, and (crucially) that in those circumstances the welfare of the beneficiaries and the proper administration of the trust in their favour warrant the court’s intervention. Plainly that does not mean that a trustee will always be removed from office wherever a good arguable case of breach of duty or misconduct has been made out. That is a non sequitur.

It is significant that the Chief Master’s judgment in Schumacher followed a directions hearing, at which the defendants submitted that they had been accused of bad faith (although the claimant disavowed any such allegation), and that therefore there would have to be a full eight-day trial with cross-examination of the witnesses. The Chief Master’s judgment is therefore concerned primarily with an application of the overriding objective in determining the appropriate mode of trial on the facts of that particular case: see in that regard paragraphs [33] – [34] of the judgment. In essence, the Chief Master held that bad faith was not alleged or relevant to the claim to any significant degree, and that the removal application in that case could be determined fairly without the need for what he called a “battle royal”, i.e. a lengthy trial involving full cross-examination.

Accordingly, the true ratio of the Chief Master’s judgment in Schumacher was that a full trial with cross-examination should not be directed on the facts of that particular case, because it would be contrary to the overriding objective to do so. What the Chief Master did not purport to do was suspend the ordinary rules of evidence in the context of trustee removal claims.

As this claim came before me on a final hearing on written evidence without either party having sought permission to cross-examine any witness, I do not need to consider, and do not consider, the circumstances in which the court might make an order for cross-examination in the context of a trustee removal claim. I do however note that both Long v Rodman and Schumacher v Clarke concerned the court’s statutory jurisdiction under section 50 of the Administration of Justice Act 1985 to remove or replace the personal representatives of an unadministered estate. While that jurisdiction is exercised on the basis of the same basic principles as the jurisdiction to remove and replace trustees (see Thomas and Agnes Carvel Foundation v Carvel [2008] Ch 395), the administration of an unadministered estate is a time-limited process, which should be completed as expeditiously as possible. That feature may well have influenced the Chief Master’s application of the overriding objective in those cases. However, as the question whether to order cross-examination does not arise for determination by me on this case, I say no more about it here.