CH-2025-BRS-000001 - [2025] EWHC 2373 (Ch)

Julian says that the judge improperly criticised the order of an earlier judge dated 3 September 2019, asserting, without adequate grounds, and without any evidence or reasoning, that the earlier judge had made an error in listing the counterclaim for trial over four days. Certainly, the judge says (at [11]) that “the counterclaim should have proceeded under the procedural and substantive framework set out in Chief Master Marsh’s line of authority.” What he says was “an error” was “the extent (if at all) that the counterclaim has proceeded and directions have been made to determine all of the factual issues complained of in the pleadings, in addition to determining whether [Julian should be replaced]”. So, the only “error” lay in treating and preparing for the trial of the counterclaim for an order removing and replacing Julian as though it also included “all of the factual issues complained of in the pleadings”.

However, whether the judge was intending to attribute the “error” to the earlier judge (which I doubt) rather than to the parties themselves, the fact is that the judge in the present case was not seeking to revisit, let alone rewrite, the trial directions given by the earlier judge. Instead, he was simply adjudicating upon a stand-alone application in Form N244, which the respondents had issued, and which sought the removal of Julian and his replacement by an independent trust corporation. In so adjudicating, he was loyally applying the principles laid down by Chief Master Marsh in the trio of cases already referred to, and therefore deciding that it was unnecessary to find any mismanagement or breach of trust on the part of Julian. This no more amounted to an appeal from the earlier judge’s trial directions than would an application in an ordinary case for summary judgment before trial. Whether to hear the application at all was a case management decision with which, on the material before me, I cannot interfere.

Julian also says that the respondent’s counsel wrongly submitted that the earlier judge had not had his attention drawn to, or taken account of, the decision in Schumacher v Clarke. In his judgment, the judge below said it was not clear to him whether the parties directed the earlier judge to the decisions by Chief Master Marsh, and that Julian’s counsel “does not positively say that these authorities were cited, but confidently says that the intention of the court was to resolve all the factual issues raised by the pleadings, rather than merely determine whether [Julian should be replaced].” From the transcript it is clear that the reason that Julian’s counsel (very properly) did not give a positive answer to the judge’s question was that the hearing was five years ago, there was no transcript, and he did not wish to say anything which later turned out to be wrong. In his judgment, the judge below said that he accepted counsel’s explanation. On that basis, if the respondent’s submission was indeed wrong, it could have made no difference. This point is a sideshow, and the ground of appeal itself goes nowhere.