Marley v Rawlings [2011] EWHC 161 (Ch): more wills and won’ts

Very simple and unfortunate case.  Mr and Mrs Rawlings executed mirror wills.  Each leaving the survivor their estate, and the survivor leaving everything to Mr Marley, their adopted son. 

Problem was they executed the wrong one.  Mr Rawlings executed his wife’s, and she executed her husband’s.  The mistake was not noticed until the survivor – Mr Rawlings – died.  Which meant the Rawlings’ natural children, otherwise disinherited, would inherit the lot on intestacy.  Mr Marley, the chosen beneficiary, would be forced to move out.

Now, it’s not all bad for Mr Marley; he has a clear claim in negligence against the solicitors who mixed up the wills when getting the Rawlingses to execute.  But it IS bad for the solicitors, as they would end up essentially paying the value of the estate – some seventy grand – because of a cock-up over something that probably earned them a hundred quid.

So an application was made to Court.  To rectify the wills.  There’s the power to do that under s20 of the Administration of Justice Act 1982:

“1) If a court is satisfied that a will is so expressed that it fails to carry out the testator's intentions, in consequence—

(a) of a clerical error; or

(b) of a failure to understand his instructions,

it may order that the will shall be rectified so as to carry out his intentions.”

OK.  So far so good.  Mr Marley’s brief couldn’t find an exact precedent in English law, but he did bring forward cases from New Zealand, Jersey and Canada, which allowed the substitution of the right will for the wrong one where someone had signed the wrong one, and Australia, where a will didn’t need to be signed at all so long as the intent was clear.  Although those courts do not bind the English court, they are often highly persuasive.  Same legal system, same thought process, very very often same result.

So an easy win?  Er, no.  The Court refused to rectify the will.  Getting the wills mixed up when handing them over to sign is not a “clerical error” because a “clerical error” only refers to the words of the will itself.  Because there was no error of drafting in the will – the will said exactly what the Rawlingses wanted – there was no clerical error. 

I have to admit that when I read the appropriate paragraph – and there IS only one paragraph investigating that particular issue – my gast was flabbered.  The judge asked “what if, instead of what actually happened, the solicitor had pulled a will prepared for a totally unconnected testator out of his briefcase and that one had been signed by mistake? It flies in the face of common sense to say that the court would have jurisdiction to rewrite the will in that situation, but there can be no ground of distinction in principle.”  Well, yes, there IS a ground of distinction in principle; the will signed by Mr Rawlings had EXACTLY THE WORDS HE WISHED TO INCLUDE.  And how great a leap of imagination is it to suggest that the fairly obvious clerical error was getting the names and pronouns wrong? 

Elsewhere the judge stated that “the testator did not intend by his signature to give effect to the will which he signed. If asked whether he did he would not have said, 'yes, subject to correction of errors by substituting my wife's name for mine wherever it occurs'. He would simply have responded, 'no, of course not, that is my wife's will'.”  Again I would submit that this is the wrong question to ask.  These were mutual wills.  If Mr Rawlings were asked, when being shown BOTH wills, whether the one he signed contained his wishes, he would say “yes, you can see me and my wife are of one mind, so we executed these wills.”  And if he were taken to the signature page and shown that they had signed the wrong ones, he would have acted accordingly.  He signed a will stating that the residue estate should go to Mr Marley, his wishes were that the residue estate should go to Mr Marley, there is a specific statute stating that balls-ups can be corrected, every other English-type legal system allows rectification in these circumstances and the Court, in a very short, barely reasoned, judgment has ignored everything in favour of an extremely narrow definition of “clerical error” that pays little attention to the nature of mutual wills.

I really hope this one goes to appeal.  The judge quoted dicta from 1875 stating “much as I regret the blunder, I cannot repair it.”  I would like to think we have moved on in the last 136 years.  At least the judge’s regret should be a green light to the Court of Appeal to take it on.

Richardson v Richardson [2011] EWCA Civ 79: unknown unknowns

There is surely no more tragic case than that of Barder v Caluori, from 1988.  The Barders agreed a clean break divorce settlement through which Mr Barder gave his ex-wife the matrimonial home.  Five weeks later she killed their children and committed suicide.  Mr Barder was able to appeal the divorce settlement – even though he had agreed to it – because the point of the clean break, i.e. to ensure provision for their children, was now no longer needed.  What the case did decide, though, was that you could overturn divorce settlements if something extraordinary happened after the decree nisi.

This is what happened in the Richardson case.  The Richardsons were in their seventies when they divorced, and they split between them a property portfolio worth £40m gross, but highly leveraged, to the extent that there was “only” £10m of equity in them.  Problem was that one of the liabilities was an insurance claim against their property partnership; a young girl had fallen out of a window and was bringing a personal injury claim.  Worth up to £3.2m.

They didn’t take this into account on divorce, because they both believed that it was covered by insurance.  Problem was twofold.  One, the insurance cover was only worth £2m.  Two, the insurance company, post-divorce, voided the policy.

Mr Richardson, post-split, had taken on the liability.  Suddenly he was faced with wipeout.  So he sought to amend the settlement along Barder lines.  The Court of Appeal had a look at it, and gained inspiration from the unlikeliest of sources; Donald Rumsfeld.

There are known unknowns, the Court said, and unknown unknowns.  The known unknowns were the value of the claim and the insurance limit.  Those were things that the Richardsons could have investigated, but chose not to do so.  In which case the loss lies where it lies.  If either was overly bothered about them, they would have got evidence in to assess its value.  If you want to turn a known unknown into a known known, it’s up to you to do so.  If you don’t, you stand the risk of ignorance.

The unknown unknown was the voiding.  The Court held that this was a very different situation.  The first either could have known about the policy voiding was 4 months after the divorce agreement was signed up.  No investigation would have dragged that out of the insurer.  And despite the respondent’s assertions (Mrs Richardson had died not long after, so her estate was involved) that Mr Richardson knew about the claim, there was no reason why he should have been on notice that this would have stymied his insurance cover. 

So the Court of Appeal decided it was fair to look again at the settlement.  This was not quite a Barder situation because the Court was at pains to argue Barders should be very, very rare indeed; however, it was a vitiating mistake – which has pretty much the same effect.  The parties had proceeded to a divorce on the supposedly solid presumption that they would have zero liability for the girl’s accident.  The voiding risk was definitely a mistake and it is fair to go back and re-look.  Not least because Mrs Richardson took her divorce share largely in cash; the girl’s family would maybe seek to execute any judgment against Mrs Richardson’s assets rather than Mr Richardson’s highly-mortgaged hotel chain.  Mr Richardson was therefore ordered to pay a million of the amount otherwise due to Mrs Richardson’s estate into Court.  Where it could sit, accumulating interest, waiting for the verdict in the girl’s claim (and in Mr Richardson’s dispute with the voiding insurer). 

Ironically, by emphasizing how tight the Barder criteria are, the Court may have opened the door to the vitiating mistake.  Certainly it will form a useful backdrop argument to the desperate party trying to Barder their way out of a bad divorce deal.

Sibthorpe v London Borough of Southwark [2011] EWCA Civ 25: get the champerty out

English law used to be suffused with obscure terms.  Detinue, enfeoffment, ejectment, replevin.  All long gone with the Rush to Modernity.  One that still survives is champerty.  Simply put, it’s what bans solicitors having a stake in a case.  A solicitor is an officer of the court, and it has long been held that it creates a conflict of interest.  If the solicitor gets a bonus for winning a case, it could be tempting to crack the rules a little.

It’s a common law doctrine, not set up by statute.  Which means that it can be changed by statute.  And indeed has.  The most obviously champertous thing for a solicitor to do is agree that they will only get paid if they win.  You can hardly have a greater interest in the case.  Common law bans it.  Despite numerous attempts by the Court to get around this, no Court had the guts to abolish it, save for an odd one in the case of Thai Trading v Taylor – a Court of Appeal judgment that has been studiously ignored ever since.  So, Parliament got around it.  Section 58 of the Courts and Legal Services Act 1990 allows conditional fees – no win no fee – to be used.  The solicitor gets rewarded by being able to add a percentage uplift to the basic fee.  Which the losing party will pay.  On the basis that the bonus for the winning cases will compensate for the risky lost cases.  This is of course a big problem – a good solicitor will be able to pick out the 60%-chance-of-winning cases, win them all, get big percentage uplifts, and not have to suffer the loss of a losing case, by simply not taking them on…

So this limited form of champerty is specifically permitted.  Contingency fees – getting a slug of the damages – are not; that is a step too far.  For England at least.

As solicitors can often double their money with conditional fees, losing parties pore all over the agreement to find some technical error which makes the fee unenforceable.  In the Sibthorpe case Southwark Council thought they had found something.  Belshaw & Curtin represented a number of tenants who sued the Council over building defects; the claims settled with the Council agreeing to pay recoverable costs.  B&C had acted on a conditional fee.  Only a 10% uplift, so confident of victory.  So confident, in fact, that they had persuaded tenants to sue by promising to pay the Council’s costs if they lost.  A-ha, said the Council.  This is champertous.  You have an interest in the case.  Not in winning, but in not losing.  You will lose money by losing the case; that goes beyond the Act.

Costs judge originally agreed with the Council.  Which meant that B&C could not get their fees paid by anyone.  Harsh.   So they appealed, second time around a High Court judge decided, yes, they could get their fees.  So the Council appealed.

High-powered Court of Appeal; Neuberger MR plus Lloyd LJ.  And even the traditional new bug on the appellate bench was a high-powered one, namely Gross LJ, the head of the Commercial Court.  So they were taking it seriously.  Indeed Neuberger went through the history of champerty and confirmed that, no, it won’t be abolished just yet.  And that the agreement B&C had with clients fell outside the provisions of the Act.  Therefore they couldn’t rely on the blanket conditional fee exemption.   All going badly so far.

But was the agreement champertous?  The Court decided that the general fashion was to move away from the champerty trap.  Not to extend it.  Would the agreement be champertous because of the promise for an indemnity?  The Court followed the principle that many things may be done, but nothing for the first time.  Nobody had found a case that an indemnity would be champertous; therefore the indemnity would not be champertous.  So that was fine – and the remainder of the agreement did fall within the Act’s provisions.  Although the Court does not seem to have split the agreement into two, this seems to be the upshot.  The indemnity falls outside the Act, the rest does not.  Champerty was a matter of public policy; barring the B&C agreement would not be in the public interest, as it would put people off suing.  Especially if, as in Sibthorpe, their claims were successful.

A bit of a relief for B&C, then, they got paid for their good work. Or at least they will.  Given the public interest in the whole issue of litigation funding, it is possible that it will go to the Supreme Court, although given the strength of the Court of Appeal’s reasoning, and the particularly acute intellectual analysis provided by Neuberger and the support of two other important judges, it is possible that this will remain the final word on the indemnity issue.  Certainly we do at least have clarity on those rare cases where the solicitors put their money where their mouths are.

Nicholas Prestige Homes v Neal [2010] EWCA Civ 1552: read read read

People enter contracts all the time without reading the clauses.  Because they are often not there.  There’s just a comment stating that there are terms somewhere.  That’s enough to bring those terms into a contract; it would be burdensome to hand over a leaflet with reams of small print every time you buy a bus ticket or a bag of crisps.  It’s not so bad because unfair terms are caught by legislation.

Sometimes people do provide their terms.  That’s what Nicholas Prestige Homes did with the Neals.  The Neals wanted to sell their house, instructed a number of agents, got nowhere, so approached NPH.  Which agreed to act as estate agent, but only if it was the sole agent.

The contract was sorted by email.  NPH sent through its contractual documentation: a covering email, and two agreements, one a “sole” agreement, the other a “multiple agency” agreement.  Confusing?  Not when you read the email.  The NPH representative stated that NPH would work on a multiple agreement for the next month or so, to allow the Neals to dis-instruct the other agents, and would then take over on a sole agency basis.  In contractual terms, that was the offer; the acceptance was the email response from Mrs Neal.  “That’s fine, look forward to some viewings.”

The problem was Mrs Neal didn’t really look at the email or the attachments.  She had no intention of having NPH as sole agents; she wanted NPH to be one of a number of agents.  But her state of mind was irrelevant.  You look at the contract objectively.  What does the objective person see?  An email from NPH saying “we’ll be on our own” and a response saying “OK”.  The objective person would not be able to read Mrs Neal's mind and would assume the contract was, after a month or so, on a sole agency basis.

And, of course, what happened?  A month and a half later NPH got a phone call, all phones were engaged, but there was a voicemail.  Seen the Neals’ property, v interested, call me back.  Someone at NPH did call back immediately, but got an engaged tone.  Whom was the person now ringing?  Plumm.  Another estate agent.  Whom the Neals had retained.  In breach of the sole agency agreement.  And the person playing telephone tig with NPH ended up buying the Neals’ house.  Plumm got the commission as they dealt with the sale.  NPH missed out on ten grand.

NPH therefore sued.  Breach of contract.  It was an easy enough breach to prove; the contract had been agreed by Mrs Neal on the Neals’ behalf, at least on an objective viewpoint.   The difficulty was the damages.  NPH had to prove it had suffered a loss.  What it managed to show the court was that it would probably have landed that very sale; the eventual purchaser had contacted NPH to discuss buying.  On a balance of probabilities that sale would have gone ahead with NPH as agent rather than Plumm.  The Court thought about a discount on the basis NPH might somehow have put the buyer off, but decided against it.

So, a simple enough case, but one that emphasizes the importance of reading documents before you commit to it.  Unlike a random consumer contract, the agreement between NPH and the Neals was almost bespoke, so legislation was not so much of a protection; plus there was nothing unfair about NPH’s offer.  It wasn’t even as if the sole agency bit was a trap, it was clear in the covering email.  At the very least, had Mrs Neal emailed back stating “we’re happy to have you as one of our agents”, it would be considered a counter-offer.

Thorpe v Fellowes Solicitors LLP [2011] EWHC 61 (QB): importance of paperwork

In 2003, Mrs Hill, then aged 78 sold her house and gave the proceeds to her daughter.  So they could live together.  A quotidian transaction.

Trouble was Mr Thorpe was not happy.  Mr Thorpe is Mrs Hill’s son.  He didn’t get a penny.  What’s more, Mrs Hill then suffered from dementia.  Mr Thorpe decided that Mrs Hill must have been influenced by her daughter to sell the house and give her the money.  He didn’t want to sue his mother or daughter, indeed, how could he?  He had no legal standing.  Instead he applied to Court to become Mrs Hill’s guardian, so that he could bring claims on her behalf, and then did so against Mrs Hill’s solicitors.  Saying that they should have spotted Mrs Hill’s dementia and her daughter’s undue influence.

It took until late 2010 for the claim to come to Court.  Nearly 8 years after the sale of the property.  Mainly because it took until late 2009 to issue the claim.  Not surprisingly, the solicitor who advised Mrs Hill, Ms Butler, could not remember a one-off instruction from way before.  The important thing was that Ms Butler had kept a very good record of what happened.  Contemporaneous documentation.  It proved to be one of the key difference makers in the case.

What did Ms Butler do?  She did the usual things a conveyancing solicitor should do; client care letter, mortgage redemption statement, searches on the property Mrs Hill was going to buy with her daughter.  And she took another step.  Most of the instructions were dealt with by Mrs Hill’s daughter, so Ms Butler asked the daughter to bring Mrs Hill to their offices to sign the contract of sale.  And she noted on the file why she did so.  A clear attendance note stating that Ms Butler wanted to check that Mrs Hill had fully agreed to the sale.  That she was not being forced.

They duly met, and Ms Butler made another attendance note.  Mrs Hill fully understood what was going on.  And again the note contained the reason  behind their meeting – and that Mrs Hill was “adamant” that she wanted to sell up and live with her daughter.

It’s all crystal clear.  Even though Ms Butler had no suspicion at all that Mrs Hill might have been suffering from dementia, she had assessed Mrs Hill and recorded that Mrs Hill was perfectly compos mentis.  And this had a huge effect on the case.  The only way to prove that Mrs Hill was suffering from dementia in 2003 was to go to an expert; the expert had to go through medical records and contemporaneous documents to see what Mrs Hill might have been like at the time. 

The Court decided to order a single, jointly-instructed, expert.  A Dr Cockerell.  His view was that Mrs Hill might have been suffering from dementia in 2003, but that it would not have interfered with her decision making.  Even such decisions like selling her house.  And certainly a competent solicitor would not have perceived any problems; even a medic may not have noticed anything amiss.  Essentially, he destroyed Mr Thorpe’s case.  Would he have reached that conclusion without the clear attendance notes from Ms Butler?  Very possibly not.  Dr Cockerell relied on those notes - an independent witness to Mrs Hill's state of mind - to verify Mrs Hill’s state of mind in 2003.

Mr Thorpe continued with the case, disastrously.  He issued a witness summons on Dr Cockerell, forcing him to cancel a day’s worth of clinic or face contempt proceedings.  The judge didn’t like that.  Mr Thorpe tried to call his own doctors who had previously suggested the dementia angle.  The judge didn’t like that either, there was no permission for calling any experts other than Dr Cockerell.  He tried to claim a signature had been forged without any evidence.  The judge didn’t like that.

The case therefore collapsed in fairly short order.  Ms Butler’s careful and considered approach to her client and keeping her file up to date may well have won the case outright.  Certainly the judge liked THAT.

One knock-on effect: Mr Thorpe’s solicitors wrote to his own pre-case experts demanding why they had come to a different conclusion to Dr Cockerell.  As the judge pointed out, this is not uncommon; medicine is a developing science.  What the judge certainly didn’t like was the insinuation in the letters that the difference of opinion might be a professional standards issue.  An unwonted threat.  Currently a case is going before the Supreme Court concerning whether you can sue a Court expert for going off on one; this case may be of some importance.  Would any expert be happy making concessions in a case if those instructing them promptly sued them?  Would that be not inhibitive of justice?