Booth v Booth & Ors

A second claim is not automatically an abuse of process because it could and should have been advanced in earlier proceedings. The court must make a broad, merits-based assessment of the public and private interests. Where substantial merits issues have already been determined, it may be wrong to strike out the claim despite the defendant’s legitimate sense of harassment.

A defendant does not acquiesce in a later claim merely by pleading to its merits where the defendant has promptly and consistently asserted that the claim is abusive. Laches requires an evaluative judgment on delay and prejudice. Speculative evidence that a deceased person might have assisted the defence will not establish sufficient prejudice. A transfer to a wife intended to put assets beyond a creditor’s reach may nevertheless be an effective beneficial gift.

The respondents claimed an account of their entitlements under the intestacy of Lucy Booth. They alleged that Edward Booth had beneficially transferred the farmhouse and cottages to Lucy in 1992, but had later misapplied her estate to himself.

In earlier probate proceedings, some of the respondents had instead proceeded on the basis that Edward beneficially owned those assets at his death. Norman Booth, the principal beneficiary under Edward’s will, was substituted as defendant in the present action. He contended that the claim was an abuse of process, barred by laches, and that Lucy held the property only as a bare trustee.

The Deputy High Court Judge rejected those defences. He held that Norman beneficially owned the farm land and buildings under an earlier agreement, but that Lucy beneficially owned the farmhouse and cottages. Norman appealed on the abuse, laches and beneficial-ownership issues.

1. Appeal dismissed. The Deputy Judge was wrong to find that Norman had acquiesced in the second claim. An abuse objection is an objection to the claim being brought, rather than a substantive defence. Although an early strike-out application might have been preferable, Norman had promptly and repeatedly pleaded and maintained his abuse case. Pleading a merits defence, and participating in the ordered trial of preliminary issues, did not amount to acquiescence.

2. The court nevertheless declined to strike out the claim. The fact that the respondents could and should have raised the issue in the probate action did not by itself establish abuse. The required assessment was the broad, merits-based judgment described in [2002] 2 AC 1. At the advanced stage reached, central issues had been tried and the High Court had found that Edward had beneficially transferred the farmhouse and cottages to Lucy and had misapplied her estate. It would be wrong to strike out the action and leave Norman to retain property to which he had no sole entitlement.

3. The laches defence also failed. The respondents had known the material facts from 1993, but there was no evidence that they deliberately delayed until Edward’s death to prevent him giving evidence. The suggested prejudice was speculative. The laches issue required a value judgment after weighing the circumstances, and there was no basis for appellate interference.

4. The finding that Edward had made a beneficial gift of the farmhouse and cottages to Lucy was open to the Deputy Judge. The presumption of advancement was not rebutted. The solicitor’s evidence, Edward’s instructions for the transfer, and his subsequent administration of Lucy’s estate supported a transfer of both legal and beneficial ownership. The creditor-avoidance purpose did not establish that Edward retained a beneficial interest.

• Court of Appeal (Civil Division): Appeal dismissed. The court upheld the refusal to strike out the claim for abuse, the rejection of laches, and the finding that Lucy beneficially owned the farmhouse and cottages.

• High Court of Justice, Chancery Division, Leeds District Registry: On 6 February 2009, Mr James Allen QC, sitting as a Deputy High Court Judge, determined preliminary issues. He held that the farm land and buildings were beneficially Norman’s, but that the farmhouse and cottages formed part of Lucy’s estate.