![PT-2024-000461 - [2025] EWHC 2285 (Ch)](https://backend.juristeca.com/files/emisores/logo_O3rEzCI.png){kind=logo}
The Claim
The Claim:
The claimants issued this claim by Part 8 claim form on 29 May 2024 (“the Claim”). The claim was supported by JSH 1.
The premise of the claim is that the defendants are not the Rutland Trustees and lack standing because the Rutland Trust never came into existence there having been no assent in writing of any asset to the Rutland Trust. The claim therefore does not acknowledge the existence of the Rutland Trust nor does it seek any directions from the court about whether the defendants are the Rutland Trustees. Instead its focus is the Property Trust.
In summary the claim seeks:
The defendants’ retirement as trustees of the Property Trust;
Transfer of the Property to the claimants and Stephen Bradshaw; and
An order that the defendants abide by a solicitors’ undertaking to retire given in the 14 December 2023 letter.
The defendants consider they are the current Rutland Trustees. They are aligned in their willingness to retire as trustees of the Property Trust and the Rutland Trust. However, they require a suitable indemnity or security in relation to both trusts. The reasonableness of the indemnities which the defendants seek depend on whether they are Rutland Trustees and whether the half share in the Property or the Cash Sum are assets of the Rutland Trust. This will affect the nature of their rights and obligations including in relation to the incidence of inheritance tax in respect of the deceased’s share in the Property and the Cash Sum. The defendants say that they want to protect themselves against the risk of personal liability (including in relation to any tax) and that the indemnities should also cover expenses.
Their personal circumstances are different. SHW had an aggressive cancer and was very unwell, to the claimants’ knowledge, throughout 2023 and 2024. Although therefore SHW had until more recently taken the lead with the claimants, MKD has now taken on that role particular in relation to this claim.
The defendants filed acknowledgments of service. MKD filed and served MKD 1 in response to the claim. SHW’s witness statement was dated 27 June 2024 (“SHW 1”). By application dated 24 June 2024 SHW had sought relief from sanction for the late filing of SHW 1. An order was made on paper on 2 December 2024 granting that relief.
At [70] and [71] of MKD 1, MKD set out nine issues in respect of which the defendants sought directions from the court. These were the same nine issues identified in the defendants’ letter of claim dated 27 May 2024. He explained they would have been the subject of a claim for directions under CPR 64 if the claimants had not issued their claim first. The defendants sought permission to counterclaim for this relief pursuant to CPR rule 8.7. The issues identified in MKD 1 were:
Whether the defendants are the trustees of the Rutland Trust.
What property is held by the defendants, and subject to what trust(s)?
Subject to the answer to Issue (2) above, whether the claimants, as executors, should be compelled to assent the property and/or the Cash Sum to the Rutland Trustees?
Whether the Rutland Trustees are responsible for meeting the Rutland Trust's tax liabilities arising on Vicki’s death?
The meaning and effect of clauses 9(G) and 10(C) of the Will, should there be any controversy as to the same.
Whether, in the absence of agreement, the defendants’ costs and expenses may properly be deducted from the assets of the Rutland Trust.
Whether the property should be sold by the defendants.
Whether the 2020 Restriction should be removed.
Whether the claimants should provide estate accounts to the Rutland Trustees.
JSH did not agree that any of the issues raised by MKD needed to be determined at all let alone in this claim. Her position was and remains that the Rutland Trust has never come into existence. As a consequence, she did not agree to the proposed application and considered that the defendants had no viable defence to the claim.
Consistent with that view JSH issued an application for summary judgment and/or strike out against the defendants on 23 July 2024 (“the Application”). It was supported by her second witness statement dated 22 July 2024 (“JSH 2”).
The Application sought:
an order directing the defendants, as trustees, retire pursuant to s.19 of the Trusts of Land and Appointment of Trustees Act 1996 (“TOLATA”) following a direction by the claimants, as beneficiaries, to the defendants that they retire;
summary judgment pursuant to CPR 24.3; and
strike out of the defendants’ statements of case pursuant to CPR 3.4(2) (a) (b) and (c).
Central to the Application was JSH’s assertion that the defendants had agreed to retire unconditionally and had given an undertaking to do so in the 14 December 2023 letter. They could therefore have no defence to her claim.
The Application was listed for hearing on 16 December 2024.
MKD issued the Counterclaim Application to determine the nine questions set out in MKD 1 which was also listed for hearing on 16 December 2024.
The evidence in support of the Counterclaim Application and in response to the Application was contained in his second witness statement dated 4 December 2024 (“MKD 2”). SHW’s second witness statement in support of the Counterclaim Application and in response to the Application was dated 3 December 2024 (“SHW 2”).
JSH responded to this evidence in her third witness statement dated 10 December 2024 (“JSH 3”).
Payne Hicks Beach were instructed on behalf of the claimants in December 2024 (“PHB”). On 13 December 2024, the parties agreed by consent to adjourn the hearing on 16 December to enable them to seek to reach a settlement. No settlement was reached. The Application and the Counterclaim Application were relisted. This was that hearing.
The claimants had until shortly before the hearing refused to consider any form of indemnity that provided the defendants with an indemnity in relation to the Rutland Trust. On 19 May 2025, PHB provided a revised form of indemnity which appeared to acknowledge that the defendants were the Rutland Trustees, but it came with caveats seeking to reserve the claimants’ rights to contend that the defendants were not the Rutland Trustees. Subsequent queries raised by MKD had not been answered by the time of the hearing and no resolution had been reached. Although SHW was in principle satisfied with the open version of the deed of appointment, retirement and indemnity, he shared the concerns expressed by MKD and also needed the position in relation to the trustees’ costs and expenses to be resolved.
Although JSH was unrepresented when the claim was issued, PHB did not amend/modify or step back from the full extent of the Application as advanced or the resistance to the Counterclaim Application prior to the hearing.
And although JSH was unrepresented until December 2024, she consistently describes herself as a barrister and has done so in each of her witness statements. On 1 December 2023 she explained “I am a barrister who has specialised in tax I do not require your assistance in any of these matters”. On 4 March 2024 she said, “I cannot as a barrister acknowledge and accept as true a set of facts knowing they are both legally and factually false”. MKD’s solicitors’ enquiries of the Bar Council suggest that JSH has been an unregistered barrister since 1 January 2010. This was raised in MKD 2. JSH did not address it in JSH 3 and still described herself as a barrister. Whether she should hold herself out as a barrister is a matter between her and the Bar Standards Board. But in so far as she has until recently advanced the claim as an unrepresented party I take into account that she has held herself out as being a barrister and/or a barrister who had specialised in tax.
Whilst there is no different set of rules or expectations in relation to the conduct for unrepresented parties including the requirement to comply with rules and practice directions, in some cases there might be some latitude at the edges if the nature of an application or the law involved is particularly complex. Here JSH has held herself out as having specialist legal knowledge relevant to the claim that she has chosen to advance. That will impact on what if any latitude she should be given in relation to her approach and conduct of the proceedings.
JSH has advanced this claim on behalf of both claimants. In her correspondence before and after the issue of the claim she frequently says she writes on behalf of Ms Cosnier as well. She has not always obviously copied in Ms Cosnier. In paragraph 40 of JSH 1 she explained “The Second Claimant authorises the First Claimant to make this witness statement and relies upon the evidence that is set out herein in support of the application.” This or similar wording is used at the end of each of Ms Hilton’s witness statements, but there is no witness statement to that effect from Ms Cosnier so it is not clear what her position is. Although the defendants’ solicitors have sent documents to Ms Cosnier, she does not appear to have engaged in this claim despite being a named claimant.