PT-2024-000461 - [2025] EWHC 2285 (Ch)

The defendants’ position was that the Application should be dismissed with costs and that the court should grant the Counterclaim Application and permit them to advance the counterclaim. The court should then determine at least the first issue - whether the defendants are the Rutland Trustees.

The claimants did not concede the Application but rather their counsel sought to submit that the question of whether the defendants were Rutland Trustee arose on the Application because the defendants had raised it in the evidence in response to the Application.

I have read Mr Adams’s written submissions with care. They did not address the framework for the strike out and summary judgment application and made no submissions in relation to any part of the Application as advanced by the claimants. The Counterclaim Application was listed to be considered subject to the outcome of the Application. If the Application were unsuccessful the court would be considering whether to allow the defendants to advance the counterclaim and what directions to give for its future conduct. It was not before the court for determination of any of the issues raised by it.

Despite the clear and unambiguous evidence of JSH including her assertion at JSH 2 [4] “The Defendants statements of case raise issues which are unrelated to the Claim, incoherent and cannot amount to a defence.” and the way in which the Application was advanced Mr Adams sought to argue that whether the defendants were Rutland Trustees was always implicitly in issue. Whilst that was always the defendants’ position that was not the claim advanced by the claimants nor the way in which the Application was advanced. The focus of JSH’s evidence was that the defendants had agreed to retire and/or had given a solicitors’ undertaking to do so and should be held to it. This was based on, what is at best, a mischaracterisation of the 14 December 2023 letter as set out above and would have been bound to fail.

Mr Adams made no submissions at all in relation to the s.19 TOLATA or strike out elements of the Application.

He sought to argue that a determination of whether the defendants were Rutland Trustees could be shoehorned into the summary judgment part of the Application because the defendants had put it in issue in their responsive evidence. He argued that his submissions were clearing off the defendants’ claim to a beneficial interest. The defendants did not claim any personal beneficial interest; they claimed to hold the deceased’s share in the Property on the terms of the Rutland Trust as the Rutland Trustees.

This fundamentally undermined the Application as advanced. If JSH now accepted that the question of whether the defendants were the Rutland Trustees had to be determined then there was a real prospect of defending the claim as advanced and/or there was a compelling reason why the claim should not be disposed of summarily.

Mr Adams argued that the defendants were not the Rutland Trustees but only trustees of the Property Trust and sought a declaration that the defendants were never the trustees of any of the deceased’s property through the Rutland Trust and were therefore strangers. He submitted that the only issue for the court to determine was to whom to transfer the legal title to the Property.

He therefore sought an order that I direct the transfer of the legal title into the joint names of the claimants and Mr Bradshaw. However, Mr Bradshaw/Vicki’s estate are not a party to this claim and on the basis of the evidence available it appears that Mr Bradshaw does not agree with the claimants’ proposal. Since half of the Property falls into Vicki’s estate his views as to who should hold the legal title and how is a factor the court would have to take into account before making any order in relation to the Property Trust. The claimants rely on an email dated 4 March 2024 from William Sturges who confirmed that in the event of the current trustees retiring Mr Bradshaw should be noted as a registered proprietor with the new trustees.

On 30 April 2024 William Sturges confirmed that Mr Bradshaw considered that the sale of the Property should be conducted by the defendants as the Property was registered in their name as the Rutland Trustees at HMLR.

However, MKD 1 explains that on 13 June 2024, William Sturges confirmed that Mr Bradshaw resisted the Claim and agreed that the issues raised by the Counterclaim needed to be determined. This was confirmed by an email dated 13 June 2024. More recently on 27 November 2024 Hazel French of William Sturges explained “I have been informed by Stephen Bradshaw that in view of the extremely difficult relationship over several years between [JSH]and [Vicki] he adamantly does not wish the Rutland Trustees to be replaced by [the claimants]”. JSH’s response is to reject Mr Bradshaw and Ms French’s account and to urge the transfer into the joint names of the claimants and Mr Bradshaw. This simply highlights the caution with which the court should approach the proposal to transfer the legal title of the Property into joint names in the absence of Mr Bradshaw and without his agreement.

In the absence of Mr Bradshaw having an opportunity to explain Vicki’s estate’s position I am not persuaded that even if I were otherwise to determine that the legal title of the Property should be transferred that I could or should direct such a transfer now on the terms proposed by Mr Adams. In any event it would only arise if I were to summarily determine the claim in favour of the claimants. If I do not summarily determine the claim there will be time to consider the appropriate course by agreement or otherwise.

The defendants each argued that Mr Adams had addressed none of the issues raised in the Application and that not only should the Application fail but so should the claim.

Ms Palser addressed the Application as against SHW in her written and oral submissions. I have read her submissions with care and have taken them into account. Mr Moffett for MKD responded to the Application in his skeleton argument but did not make any oral submission on the basis that he said it had not been advanced by Mr Adams. Again, I have read his submissions with care and taken them into account. Unlike Mr Adams both Ms Palser and Mr Moffett referred me to the relevant legal principles and explained why they said the Application was bound to fail.

Ms Palser acknowledged that under s.19 TOLATA the claimants were in a position to seek the retirement of the trustees and had sought to do so. However, she submitted that their entitlement to any property the subject of the trust would be subject to deductions for inheritance tax, interest, penalties, the defendants’ costs and the potential claim by Vicki’s estate and that s.19 TOLATA provide protection for the defendants. They were not required to retire unless reasonable arrangements had been made to protect any rights they had in connection with the trust.

Mr Adams made no submissions in relation to the strike out part of the Application either. This aspect of the Application should have been abandoned long before the hearing. For the purposes of CPR 3.4(2) witness statements were not statements of case. The entire premise for this part of the Application was misconceived.

JSH’s reasons for striking out the witness statements were (i) that they were filed and/or served late and/or (ii) that MKD 1 set out his evidence about her conduct with which she did not agree and/or (iii) raised the counterclaim which had no reasonable prospect of success and was not in issue in the claim.

The attempt to strike out SHW 1 and MKD 1 was misconceived, opportunistic and inconsistent with the overriding objective and the court’s expectation that parties will comply with their duty to assist the court and cooperate. It should never have been advanced.

JSH sought to strike out SHW 1 on the basis it was said to have been served late. The application for relief from sanctions had been issued a month before the Application. The basis for the late service and seeking the first extension was entirely reasonable and should have been consented to. An order was subsequently made on paper.

MKD had also reasonably sought a first extension of time in time which should have been granted, not ignored. MKD 1 was filed at court in time on 14 June 2024 and emailed to the claimants. The claimants do not accept service by email so service was not effective. MKD 1 was not therefore formally served until a hard copy was received a few days later. JSH has engaged with the defendants by email throughout this claim. There was no conceivable prejudice to her in receiving MKD 1 by email on time and then receiving the hard copy a few days later particularly when she should have agreed to the first extension of time sought without the need for an application or order.

In so far as it might be said that there was a breach of CPR 32.10 requiring relief any such breach was neither serious nor significant but, in the circumstances, entirely trivial. Had MKD sought an extension before or after filing and serving MKD 1 it would have been granted as a first extension on paper and in so far as relief were required that too would have been granted as it was for SHW. Relying on the delay as a basis to strike out MKD 1 was not only entirely hopeless but entirely opportunistic and exactly the type of conduct which the court guards against.

The attempt to strike out MKD’s witness statement as an abuse of process arose because JSH considered that MKD’s references to what he considered to be her unreasonable conduct were scurrilous and ill-founded. This again was entirely misconceived. The statement represented MKD’s evidence of fact based on how he perceived her conduct for the reasons he has given. She may not agree with him but that does not mean that she can strike out the witness statement.

The summary judgment part of the Application overlaps with aspects of the other grounds for strike out. Ms Palser argued that the defendants’ counterclaim and evidence raised serious questions that needed to be determined, in particular the question of whether the defendants were the Rutland Trustees (as was acknowledged by Mr Adams) so it could not be said that the defendants did not have a real prospect of defending the claim. Further she submitted that the counterclaim itself was a compelling reason why the Claim could not be resolved summarily. I agree.

In fact the basis for summary judgment was primarily that the defendants had agreed to retire and had given a binding solicitors’ undertaking to do so and should be held to that agreement. This it was said meant that they could not have any defence to the claim. That was entirely misconceived and it is difficult to understand how JSH could have conceivably had understood the 14 December 2023 letter to either be providing either an unconditional offer to retire or a binding solicitors undertaking. Her evidence on this issue was misleading.

Additional parts of the summary judgment application were that the Rutland Trust had never been set up because there was no assent of the Property and that any trust ended with Vicki’s death as well as the s.19 TOLATA point.

Mr Moffett addressed these on the basis that not only does MKD consider them to be wrong but the evidence advanced by the defendants in response overcame the threshold for summary judgment in that their disagreement with the claimants’ position could not possibly be said to be fanciful.

It seems to me beyond doubt that the Application as advanced was always a hopeless application. Whilst JSH may not agree with the defendants she knew before she issued the claim and well before she issued the Application that there were serious issues to be determined in relation to the status of the defendants which were not suitable for summary determination. The serious issues to be determined whether in response to the claim or by way of counterclaim plainly overcome the low bar and have a more than fanciful prospect of success. They are plainly arguable.

The Application is dismissed.