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

Fecha: 22-Sep-2025

Grounds of appeal

Grounds of appeal

28.

There are eleven grounds of appeal, running to some five pages of A4. Retaining much of the original language, I can condense them for present purposes as follows:

Error of law in removing the executor under section 50 of the Administration of Justice Act 1985

1.1

The judge misapplied the legal principles governing the removal of an executor under section 50.

1.2

There was no substantial evidence to show that the executor acted in breach of fiduciary duty or that his removal was necessary for the proper administration of the estate.

1.3

The judge misinterpreted the guidance in Kershaw v Micklethwaite [2010] EWHC 506 (Ch).

1.4

The judge misapplied the overriding objective.

1.5

The judge failed to consider the views of all the beneficiaries.

Failure to consider that the estate was substantially administered with the beneficiaries’ agreement

2.1

The judge failed to give adequate weight to the fact that the estate was largely administered with the beneficiaries’ agreement.

2.2

There was no ongoing conflict or mismanagement warranting removal.

2.3

The judge did not properly apply the principle that removal should be considered only where there is a clear benefit to the estate or beneficiaries.

Improper and erroneous conclusions

3.1

The judge erred in finding a conflict of interest without properly considering the content of the correspondence.

3.2

The judge failed to apply the correct legal principles governing conflicts of interest and self-dealing in relation to executors.

Improper removal of the trustee from a discretionary trust

4.1

The judge erred by removing the appellant as the trustee of a discretionary trust.

4.2

Removal of a discretionary trustee requires specific findings of misconduct or breach of trust, which were neither alleged nor found.

4.3

The judge failed to understand the difference between a bare trust and a discretionary trust.

Unwarranted criticism of an earlier district judge

5.1

The judge improperly criticised the decision of an earlier district judge as having made an error without adequate grounds.

5.2

The criticism was unsupported by evidence or reasoning that justified overturning the prior decision.

5.3

The judge does not sit on appeal from the earlier district judge.

5.4

The defendants’ counsel wrongly submitted that Schumacher v Clarke had not been cited to the earlier district judge, and the judge failed to consider why the district judge had allowed the proceedings to continue under CPR Part 7.

Procedural irregularities and unequal treatment prejudiced the appellant

6.1

The judge failed properly to consider the central issues.

6.2

The judge allowed significantly more time to the defendant’s counsel during the hearing.

6.3

The judge failed to address the defendant’s non-compliance with the CPR.

6.4

These procedural irregularities amount to a denial of natural justice.

6.5

Paragraph 5.4 is repeated as a procedural irregularity.

Significant misunderstanding of facts

7.1

The judge was wrong on distributions.

7.2

The directions of the earlier district judge had been complied with.

7.3

The judge made findings inconsistent with the correspondence.

The judge failed to give sufficient weight to evidence corroborating the appellant’s position

8.1

The judge failed to give sufficient weight to the correspondence.

8.2

The judge failed to give sufficient weight to corroborative documents.

8.3

The judge failed to evaluate substantial and important evidence going to the central issue.

Erroneous order for costs against the executor

9.1

The judge erred by ordering the executor personally to bear the costs of the proceedings.

9.2

There was no sufficient evidence of misconduct to justify the costs order.

9.3

The judge failed to consider the defendants’ own litigation misconduct.

10.

Costs awarded on an indemnity basis

10.1

There was no proper basis to award indemnity costs.

11.

Failure to provide adequate reasons for decisions

11.1

The judge failed to provide adequate reasons for the removal of the executor and the associated costs orders.

29.

Unfortunately, not all these grounds are confined to discrete issues, as some of them cover more than one issue, and there is some repetition. For present purposes they can be grouped together as follows:

(1)

The law on the removal of executors and trustees (grounds 1 to 4);

(2)

The law relating to conflicts of interest and making unauthorised profits, as applied to executors and trustees (ground 3);

(3)

Case management issues (grounds 5 and 6);

(4)

Fact-finding issues (grounds 7 and 8);

(5)

The exercise of judicial discretion (grounds 2 to 4)

(6)

Costs issues (grounds 9 and 10);

(7)

Failure to give adequate reasons (ground 11).